Karnataka High Court
Shri C P Yogeshwara vs State Of Karnataka By on 16 June, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION NO.6034 OF 2018
BETWEEN:
SHRI C.P.YOGESHWARA
S/O. PUTTAMADEGOWDA,
AGED 54 YEARS
MANAGING DIRECTOR,
MEGACITY (BANGALORE)
DEVELOPERS AND BUILDERS LTD.,
NO.464, 1ST "G" CROSS,
2ND PHASE, BSK 3RD STAGE,
BENGALURU - 560 085.
PRESENTLY AT NO. 367,
1ST "E" CROSS, II PHASE,
BSK III STAGE,
BENGALURU - 560 085.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE FOR
SRI CHANDRASHEKARA K., ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
VIDHANA SOUDHA POLICE STATION,
BENGALURU
REPRESENTED BY
SPP HIGH COURT OF KARNATAKA
BENGALURU - 01.
-2-
2. NANDI ENGINEERING LIMITED
REPRESENTED BY
A.RUDRAGOUD
G-6, MIDFORD HOUSE
MIDFORD GARDEN
OFF. M.G.ROAD
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1;
SRI K.SUMAN, SR.ADVOCATE FOR
SRI SIDDHARTH SUMAN, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO 1.SET ASIDE THE ORDER TAKING
COGNIZANCE AS ILLEGAL;
2.SET ASIDE THE ORDER DATED 29.06.2018 (ANNEXURE A) IN
C.C.NO.17977/2018 (C.C.NO.5368/2016) ON THE FILE OF THE
HON'BLE VIII ACMM, BANGALORE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.06.2018, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is before this Court calling in question order dated 29-06-2018 passed by the VIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.5368 of 2016 taking cognizance of the offence registered against the petitioner.
-3-2. Heard Sri Sandesh J.Chouta, learned senior counsel for the petitioner, Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent No.1 and Sri K.Suman, learned senior counsel appearing for respondent No.2.
3. Sans details, facts in brief for resolution of the issue in the lis, are as follows:
On 29-03-2012 M/s Nandi Engineering Limited registers a complaint against the petitioner. The complainant is a Company engaged in the construction of Bengaluru-Mysore Infrastructure project at the relevant point in time. In this connection the complainant required lands for which land acquisition proceedings had to be initiated. At that point in time, the petitioner approaches the Managing Director of Nandi Engineering Limited in the year 2005 and assured him that he would transfer lands for the purpose of the project. In terms of negotiations, the complainant/Company issued a cheque on 20-01-2005 for a sum of `1/- crore and another cheque for a sum of `1/- crore on 27-01-2005. Even after the passage of two years, the petitioner neither acquired nor transferred lands as was assured in the name of the complainant/Company and did -4- not even return the amount. It is then the complainant seeks to initiate proceedings by registering a crime in Crime No.17 of 2012 before the Vidhana Soudha Police Station for the offence punishable under Section 420 of the IPC.
4. The Police, after investigation, file a charge sheet against the petitioner and the concerned Court took cognizance of the offence punishable under Section 420 of the IPC. The said order of taking of cognizance by the learned Magistrate was called in question in Criminal Revision Petition No.496 of 2016 on one solitary ground that the order of the learned Magistrate taking cognizance did not bear application of mind. The revisional Court, sets the order of taking of cognizance aside and remitted the matter back to the hands of the learned Magistrate, to pass appropriate order afresh in accordance with law. Later the learned Magistrate, by the impugned order, takes cognizance of the offence on 29-06-2018 and directs re-registration of criminal case and issues summons to the accused. Immediately thereafter the present petition is preferred by the petitioner challenging the second order of taking of cognizance.
-5-5. The learned senior counsel Sri Sandesh J. Chouta, for the petitioner would vehemently contend that the entire issue is purely civil in nature. What the complainant seeks to achieve by registration of crime is recovery of `2/- crores, paid through two cheques that were handed over to the petitioner. He would further contend that a time barred debt, in which no civil proceeding can be instituted is sought to be given a colour of crime. He would seek to place reliance upon a judgment rendered by this Court in NAGULAVANCHA SRIDHAR RAO AND OTHERS v. STATE OF KARNATAKA AND ANOTHER1 to buttress his submission that setting criminal law in motion for the purpose of recovery of money is impermissible.
6. On the other hand, the learned senior counsel Sri K.Suman, representing the 2nd respondent would contend that what the petitioner calls in question is an order taking of cognizance. If this Court would find that the order taking of cognizance is erroneous, the matter has to be remitted to the learned Magistrate for re-consideration. Answering the issue on merit would be enlarging the scope of the petition itself, as there 1 Writ Petition No.22057 of 2021 decided on 02-06-2023 -6- is no challenge to the entire proceedings before the learned Magistrate.
6(a). He would further contend that the petitioner being a political representative approaches the complainant with an offer that if he is paid money he will procure lands and hand over them to the complainant/Company and even though time passed by, there were neither lands nor any acquisition. It was a fraud played on the Company and if it is a fraud played, no amount of delay would vitiate the proceedings. The issue is with regard to the offence punishable under Section 420 of the IPC. It is also settled principle of law that merely because the issue is civil in nature criminal proceedings need not be quashed. He would contend that even as on today after passage of 18 years, there is neither trace of money nor the land handed over to the Company. Therefore, the petition has to be dismissed.
7. Learned High Court Government Pleader would toe the lines of the learned senior counsel for 2nd respondent and would seek dismissal of the petition.
-7-8. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute as they are all a matter of record. The transaction between the petitioner and the 2nd respondent/Company drives the Company to hand over two cheques of `1/- crore each, for the purpose of procurement of land. It is not in dispute that despite passage of 18 years there is neither the land acquired and handed over or even money returned to the complainant. The submission of the learned senior counsel for the petitioner is that the project which was launched by the petitioner failed, and the money which was handed over to farmers or agriculturists, have not been returned and therefore the petitioner had not returned the money to the complainant and that, as and when the agriculturists would return the money, he would definitely return the money to the complainant. The issue does not appear to be as simple as the learned counsel for the petitioner would put it. Be that as it may.
-8-10. What is necessary to be considered at this juncture is the prayer sought in the petition. The prayer sought reads as follows:
"WHEREFORE, it is prayed that this Hon'ble Court be pleased to:
(i) Call for the records in C.C.No.17977 of 2018 (CC No.5368/2016) on the file of the Hon'ble VIII Additional C.M.M., Bengaluru and set aside the order taking of cognizance as illegal.
(ii) Set aside order dated 29-06-2018 (Annexure-
A) in C.C.No.17977 of 2018 (C.C.No.5368 of 2016) on the file of the Hon'ble VIII Additional C.M.M., Bengaluru.
(iii) Grant such other relief or reliefs as deemed fit proper in the circumstances of the case."
(Emphasis added) The prayer that is sought is call for records in C.C.No.17977 of 2018 and set aside the order taking of cognizance as illegal.
Prayer-(ii) is also to set aside the order. Therefore, the prayer is restricted to order of taking of cognizance and nothing beyond it.
11. In the light of the aforesaid prayer, it is germane to notice the order taking of cognizance at the outset. The learned Magistrate had taken cognizance initially in terms of his order dated 15-02-2016. The said order reads as follows:
-9-" The P.S.I/P.I of Vidhanasoudha P.S has submitted Charge Sheet in Cr.No.17/12against accused U/sec.420 I.P.C.
Accused is absconding.
Original F.I.R Complainant, Charge Sheet & Connected papers checked.
The copies enclosed and prayed to take Cognizance of Offence against the accused.
For Kind Orders Perused the charge sheet Cognizance taken for the offences Punishable U/sec. 420 I.P.C.
against the accused.
Register as C.C. Issue N.B.W to Accused.
Call on::2.7.16."
Since the order did not reflect application of mind, the petitioner had called it in question before the learned Sessions Judge in Criminal Revision Petition No.496 of 2016. The learned Sessions Judge by his order dated 26-11-2016 sets aside the order taking of cognizance and remits the matter back to the learned Magistrate for re-consideration. The reason rendered and the order passed by the learned Sessions Judge read as follows;
".... .... ....
14. Though this court has opined that, order under revision is not sustainable in law, but contention of petitioner that, entire proceedings are to be quashed
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cannot be considered. This revision petition is filed U/s.397 of Cr.P.C., in which case, revisional powers vested with this court is only to record findings about legality, propriety and correctness of order under revision. Even if it is held that, impugned order is not sustainable in law, this court being revisional court cannot exercise the powers U/s.482 of Cr.P.C., for quashing entire proceedings initiated against petitioner. Hon'ble High Court is having inherent powers to quash the proceedings by invoking provision of Section 482 of Cr.P.C. Thus, contention of petitioner that order under revision is to be quashed by this court cannot be accepted.
15. In view of the above discussion and in the result, this court has come to the conclusion that, order under revision is not sustainable, thus, same is liable to be set aside, with a direction to The Learned Magistrate to re-consider the report submitted by police and pass necessary orders in accordance with law. Accordingly, I answer point No.1 in affirmative and point N.2 in Negative.
16. POINT NO.3:- In view of my findings on the above points No.1 and 2, this revision petition is deserves to be allowed by setting impugned order. Thus, matter is to be remanded back to the trial court with a direction to re-consider the police report and pass necessary orders in accordance with law. With these observations, this court proceed to pass the following:
ORDER Criminal Revision Petition filed U/s.397 R/w. Section 400 Cr.P.C., is hereby allowed.
Consequently, impugned order dated 15.2.2016 passed in C.C.No.5368/2016 on the file of VIII - A.C.M.M., Bengaluru, is hereby set aside.
Accordingly, Learned Magistrate is directed to re- consider the police report and pass necessary orders in accordance with law."
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12. After the matter is remitted back to the hands of the learned Magistrate, the learned Magistrate takes cognizance of the offence afresh by the following order dated 29-06-2018:
"Case called out.
Both accused and counsel are absent.
On perusal of the previous order sheet it reveals that the above said case has been stayed in Crl.R.P.496/2016 on the file of CCH-65. Today through High Court website the status of Crl.R.P.496/2016 has been checked and copy of the orders passed in the above said petition has been taken on print. On perusal of the above said order it reveals that on 26-11-2016 itself the above said Crl.R.P has been disposed off by setting aside the cognizance order passed by this court on 15-02-2016. Further direction has been issued to this court to reconsider the police report and pas necessary order in accordance with law.
In view of the observation made by Hon'ble CCH-65 I have gone through the charge sheet and other documents available on record. On perusal of the same the investigation officer has cited 9 witnesses and he has recorder the statements of witnesses u/s 161 of CrPC. Further on perusal of the case papers it further reveals that the IO has also collected the necessary documents from the concerned bank regarding encashment of cheques given by Nandi Engineering Limited.
On perusal of the entire case paper and record, I am of the firm opinion that there are sufficient materials to take cognizance for the offence punishable u/s 420 of IPC against accused.
As such cognizance taken for the offence punishable under section 420 of IPC against accused and re-register the case as CC and issue summons to accused.
Call on 19.7.2018."
The petitioner is now before this Court on the very same submission that the order taking of cognizance bears no
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application of mind and runs counter to several judgments of the Apex Court. Such order of taking of cognizance has been interpreted by a three Judge bench of the Apex Court in the case of PRADEEP S. WODEYAR v. STATE OF KARNATAKA2. The Apex Court frames a specific issue of cognizance order and non-
application of mind and holds as follows:
"C.5 Cognizance order and non-application of mind
76. The counsel for the appellant has contended that the order of the Special Judge taking cognizance has not sufficiently demonstrated application of mind to the material placed before him. To substantiate this contention, the appellant relied on the decisions in Pepsi Foods Ltd. v. Special Judicial Magistrate, Fakhruddin Ahmad v. State of Uttaranchal Mehmood Ul Rehman v. Khazir Mohammad Tunda, Sunil Bharti Mittal v. CBI and RavindranathaBajpe v. Bangalore Special Economic Zone Ltd. The respondent argued that this Court has made a distinction on application of mind by the judge for the purpose of taking cognizance based on a police report on the one hand and a private complaint under Section 200 CrPC on the other, and that the requirement of a demonstrable application of mind in the latter case is higher. For this purpose, the counsel relied on this Court's decisions in Bhushan Kumar v. State (NCT of Delhi) and State of Gujarat v. Afroz Mohammed Hasanafatta.
77. The decision of this Court in Pepsi Foods Ltd. (supra), arose out of the institution of a complaint filed against the appellants under Section 7 read with Section 16 of the Prevention of Food Adulteration Act 1964. The allegation in the complaint was that the appellants sold a bottle of beverage which was adulterated. After recording primary evidence, the Magistrate passed orders summoning the appellants. The appellants instituted proceedings before the High Court 2 (2021) SCC OnLine SC 1140
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under Section 482 CrPC for quashing the summoning order and the proceedings. It was in this backdrop, that while adverting to the procedure envisaged in Chapter XV of the CrPC more particularly the provisions of Section 200, Justice DP Wadhwa speaking for a two judge Bench held:
"12. [...] One of the modes by which a court can take cognizance of an offence is on filing of a complaint containing facts which constitutes such offence. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate (Sections 190 and 200 of the Code)."
78. Having noticed that proceeding had been initiated on the basis of a complaint, this Court held:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
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79. On the facts, the Court held that the allegations against the appellants did not establish any offence under Section 7 of the Prevention of Food Adulteration Act and there was no basis in the complaint to make such allegation. Setting aside the order of the High Court, this Court accordingly quashed the complaint. The genesis of the decision in Pepsi Foods Ltd. is founded on a complaint made to the Magistrate upon which steps had been initiated pursuant to the provision of Section 200 of the CrPC.
80. In Sunil Bharti Mittal (supra), the case before this Court arose out of alleged irregularities in the grant of an additional Spectrum in 2002. The case was being monitored by this Court. The CBI registered a case and after completion of the investigation filed a charge-sheet in the court of the Special Judge. The CBI, among others, mentioned three telecom companies as accused persons in respect of offences under Section 13(2) read with 13(1)(d) of the PC Act and allied offences. When the matter was taken up for the issuance of summons to the accused persons, the Special Judge while recording satisfaction that there was enough incriminating material to proceed against the accused named in the charge-sheet also found that three individuals, namely, the CMD, MD and Director of the three telecom companies were an alter ego of the respective companies. While taking cognizance of the cases, summons were issued not only to the accused in the charge-sheet but to the aforesaid three persons as well. Two of them moved this Court. Justice A K Sikri, while speaking for the three judge Bench, held that before taking cognizance of an offence, the Magistrate should have applied his mind to the case to satisfy himself that the allegations would constitute an offence:
"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form
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such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."
81. Justice Sikri observed that while the Magistrate is empowered to issue process against a person who has not been charge-sheeted, there has to be sufficient material in the police report showing his involvement. The Court held that no such exercise was carried out by the Special Judge and in its absence, the order summoning the appellants could not be sustained. The decision in Sunil Bharti Mittal (supra) arose out of a police report but clearly involved a situation where appellants had not been arraigned as accused in the charge-sheet. The Magistrate had issued summons to them merely treating them to be an alter ego of the company. This Court held that it was a wrong (and a 'reverse') application of the principle of alter ego and that the order summoning them could not be sustained.
82. In Mehmood Ul Rehman (supra), a complaint was filed by the Respondent under Section 500 of the Ranbir Penal Code (in parimateria to Section 500 of the IPC). The Magistrate passed the following order:
"4. [...] Perused the complaint, and the statements recorded. In the first instance of proceedings, let bail warrant to the tune of Rs. 15,000/- be issued against the alleged accused persons, with direction to the accused persons to cause their appearance before this Court on 22-4- 2007, to answer the material questions."
83. The Respondent filed a petition before the High Court seeking to quash the proceedings initiated by the Magistrate. The High Court rejected the petition. Before this Court, a contention was raised that the Magistrate had not applied his mind to the complaint to form an opinion on whether the allegations would constitute an offence. Relying on Pepsi Foods Ltd. (supra), it was observed that the Magistrate ought to have applied his
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mind to the allegations and must be satisfied that the facts alleged would constitute an offence. The order of the Magistrate was set aside by this Court on the ground that the order did not indicate an application of mind by the Magistrate. The facts in this case fall squarely within Section 190(1)(a) CrPC since the Magistrate was only guided by the complaint before him. Moreover, Justice Kurian Joseph, writing for the two-judge Bench has clearly taken note of the difference between Section 190(1)(a) and 190(1)(b):
"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
84. In Fakruddin Ahmed (supra), a complaint was lodged before the Judicial Magistrate alleging commission of offences under Sections 240, 467, 468 and 471 IPC. The Magistrate directed the police to register the case and investigate it. The Magistrate thus, instead of following the procedure laid down under Section 200 or 202 CrPC, ordered that the matter be investigated and a report be submitted under Section 173(2) of the Code. Based on the police report, cognizance was taken by the Magistrate. A two-judge Bench of this Court observed that the Magistrate must apply his mind before taking cognizance of the offence. However, no observation was made that the cognizance order based on a police report needs to be 'well-reasoned'. On the facts of the case, the Court held that since the cognizance order was not placed before the High Court, it did not have the opportunity to review if the Magistrate had applied his mind while taking cognizance. The matter was thus remanded back to the High Court for it to peruse the documents and then decide the Section 482 petition afresh.
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85. It must be noted that the decisions in Pepsi Foods Ltd. (supra) and Mehmood Ul Rehman (supra) arose in the context of a private complaint. Though the decision in Sunil Bharti Mittal (supra) arose from a police report, it is evident from the narration of facts in the earlier part of this judgment that in that case, the charge- sheet had not named the Chief Executive Officers of the Telecom Companies as accused. The Magistrate, however, furnished the reason that the CEO was an alter ego of the Telecom Company which, as this Court noted in its judgment was a "reverse application" of the alter ego doctrine. Similarly, the cognizance order in Fakruddin Ahmed (supra) was based on a police report. However, this Court remanded the case back to the High Court for fresh consideration of the validity of the cognizance order and did not review the Magistrate's satisfaction before issuing the cognizance order. Therefore, none of the above judgments referred to support the contention of the appellant. Though all the above judgments mention that the Magistrate needs to apply his mind to the materials placed before him before taking cognizance, they have been differentiated on facts from the present case as unlike the present case where cognizance was taken based on the SIT report, in those cases cognizance was taken based on a complaint. The difference in the standard of proof for application of mind with reference to cognizance based on a complaint and police report has been briefly discussed in Mehmood Ul Rehman (supra) and Fakruddin Ahmed (supra). A two-judge Bench of this Court in Afroz Mohammed Hasanfatta (supra) laid down the law on the difference of the standard of review of the application of mind by the Judge while taking cognizance based on a police report and a private complaint.
86. In Afroz Mohammed Hasanfatta (supra), a complaint was filed by the Manager of a Bank against a Private Limited Company alleging that in pursuance of a conspiracy, the Company was importing rough and polished diamonds from the foreign market and selling them in the local market. On verification, the bills of entry were found to be bogus. Based on the complaint, an FIR was registered for offences under Sections 420, 465, 467, 468, 471, 477A and 120B of the Penal Code. A charge-sheet was submitted under Section 173 CrPC against two persons and the respondent was
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referred to as a suspect. A supplementary charge- sheet was submitted inter alia against the respondent and based on it, cognizance was taken by the Magistrate. The High Court set aside the order of the Chief Judicial Magistrate taking cognizance. Justice Banumathi speaking for the two judge Bench dealt with the issue as to whether while taking cognizance of an offence under Section 190(1)(b) CrPC, the Court has to record reasons for its satisfaction before the issuance of summons. Relying upon the decision in Pepsi Foods Ltd. (supra), it was urged by the accused that the order for the issuance of process without recording reasons was correctly set aside by the High Court. Moreover, it was urged that there was no application of mind by the Magistrate. While distinguishing the decision in Pepsi Foods Ltd. (supra) on the ground that it related to taking of cognizance in a complaint case, the court held since in a case of cognizance based on a police report, the Magistrate has the advantage of perusing the materials, he is not required to record reasons:
"23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge- sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based
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upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge- sheet and for not taking it on file."
(emphasis supplied)
87. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 CrPC and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta (supra). The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous."
(Emphasis supplied) If the order taking of cognizance based upon the charge sheet filed by the investigation in the case at hand is considered on the bedrock of the principles laid down by the Apex Court in the case of PRADEEP S.WODEYAR (supra), the ground that drives the
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petitioner to this Court would tumble down, like a pack of cards, as the order taking of cognizance (supra) dated 29-06-2018, does not and cannot be held to be suffering from the vice of non-
application of mind. It is no doubt true that the earlier order of taking of cognizance did suffer from non-application of mind.
But, the second order that is impugned in the subject petition is in consonance with what the Apex Court holds in PRADEEP S.WODEYAR. Therefore, the ground on which the petition is preferred is unacceptable.
13. The submission of the learned senior counsel for the petitioner is that the prayer may be restricted to one of the order of taking of cognizance, but the inherent power of this Court can be exercised to obliterate entire proceedings, as it is a transaction which is purely civil in nature and a debt which is completely time barred. The complaint alleges that the petitioner approaches the complainant, claims to procure and hand over lands for the purpose of Nandi Infrastructure Project, a highway between Bengaluru and Mysuru and in the year 2005 takes `2/-
crores and till 2023 has not returned those `2/- crores.
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14. The issue whether this transaction is purely civil in nature or it is a time barred debt, if considered at this juncture, it would seriously prejudice either the petitioner or the complainant. In the light of the only challenge in the case at hand being to the one of taking of cognizance, this Court declines to exercise its inherent discretionary jurisdiction, under Section 482 of the Cr.P.C., to go beyond the prayer and answer the issue on its merit, as this Court does not find warrant of interference beyond what is challenged. The answer to the challenge is already given hereinabove. The order of taking of cognizance does not suffer from the vice of non-application of mind. The plea of the petitioner, if accepted, would amount to prognosis going beyond the diagnosis, which I decline to do.
15. For the aforesaid reasons, the petition lacking in merit stands dismissed.
Sd/-
JUDGE bkp CT:MJ