Karnataka High Court
Gurappa S/O Mallappa Patil vs Enforcement Officer on 20 April, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.101817/2014
C/W
CRIMINAL PETITION NO.100485/2016
BETWEEN:
IN CRL.P.NO.101817/2014
GURAPPA S/O MALLAPPA PATIL
AGE: 38 YEARS
OCC: MANAGING DIRECTOR
MALAPRABHA CO-OP. SPINNING MILL
SOUNDATTI, DIST: BELGAUM
NOW WORKING AS MANAGING DIRECTOR
KRISHNA SAHAKARI SAKKARE KARKHANE
NIYAMIT, ATHANI, TQ: ATHANI
DIST: BELGAUM
...PETITIONER
(BY SRI F.V.PATIL, ADVOCATE)
AND:
ENFORCEMENT OFFICER
EMPLOYEES PROVIDENT FUND
DISTRICT OFFICE
BELGAUM, DIST: BELGAUM
...RESPONDENT
(BY SRI P.V.GUNJAL, ADVOCATE)
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THIS PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS
IN SAUNDATTI POLICE STATION CRIME NO.268/2009 IN
C.C.NO.1261/2013 PENDING ON THE FILE OF THE
JUDICIAL MAGISTRATE FIRST CLASS, SOUNDATTI SO FAR
AS THE PETITIONER IS CONCERNED, BY ALLOWING THIS
PETITION.
IN CRL.P.NO.100485/2016
1. SRI BASAVARAJ
S/O DEMAPPA NIGADI,
AGE: 56 YEARS,
OCC: AGRICULTURE,
CHAIRMAN,MALAPRABHA CO-OP
SPINNING MILL LTD., SOUNDATTI
R/O: SOUNDATTI,
TALUK: SOUNDATTI,
DISTRICT: BELAGAVI.
2. SRI VIVEK S/O SUDHAKAR KAKAD,
AGE: 30 YEARS,
OCC: BUSINESS,
R/O: SHELGOAN,
TALUK: ANJANGOAN,
DISTRICT: AMARAVATI,
MAHARASTRA STATE.
3. SRI K.TIMMARAJU
S/O HANUMAHTNAPPA
AGE: 46 YEARS,
OCC: BUSINESS,
R/O: PAMPA NILAY,
3RD MAIN ROAD,
NEAR S.P. BUNGALOW,
BALLARI, TALUK: BALLARI,
DISTRICT: BALLARI.
PIN-583101.
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4. SHRI ASHIK
S/O BABBUTMAL OSWAL,
AGE: 55 YEARS,
OCC: BUSINESS,
R/O: NEAR BANNI TREE,
LAXMI TEMPLE ROAD,
GOKAK, TALUK: GOKAK,
DITRICT: BELAGAVI.
5. SHRI V.DEVARAJ
S/O VENKATASWAMY
AGE: 59 YEARS,
OCC: BUSINESS,
R/O: NO.16,
RAMATAL LAYOUT,
V.K. ROAD, COIMBATORE
TAMILNADU STATE
PIN 641035.
6. SRI V.JAGANNATHAN
S/O G. VENKATASWAMY NAIDU,
AGE: 64 YEARS,
OCC: BUSINESS,
R/O: V.K.ROAD, COIMBUTORE,
TALUK & DISTRICT: COIMBUTOROE,
TAMILNADU STATE,
PIN 641035.
... PETITIONERS
(BY SRI SHIVARAJ P MUDHOL, ADVOCATE)
AND
THE ENFORCEMENT OFFICER
EMPLOYEES PROVIDENT FUND
DISTRICT OFFICER,
BELAGAVI, DISTRICT: BELAGAVI.
... RESPONDENT
(BY SRI V.M.KHARVI, ADVOCATE)
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THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., PRAYING TO CALL FOR RECORDS AND TO SET-
ASIDE THE IMPUGNED ORDER DTD.07.12.2013 IN
C.C.NO.1261/2013 (SOUNDATTI P.C.NO.268/2009) AND
TO QUASH THE ENTIRE PROCEEDINGS PENDING ON THE
FILE OF THE CIVIL JUDGE (JR.DIVN.) JUDICIAL
MAGISTRATE FIRST CLASS SOUNDATTI AT SOUNDATTI BY
ALLOWING THIS CRIMINAL PETITION.
THESE PETITIONS COMING ON FOR FURTHER
ARGUMENTS THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
These two petitions are filed under Section 482 of the Cr.P.C., praying the Court to quash the proceedings initiated against the petitioners/accused in both the petitions in C.C.No.1261/2013 so also to set aside the impugned order dated 07.12.2013 taking cognizance as against the petitioners and issuing summons for their appearance in the matter.
2. Criminal Petition No.101817/2014 is filed by accused No.1 and Criminal Petition No.100485/2016 is filed by accused Nos.2 to 7.
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3. Brief facts of the petitioners as made out in the petition, petitioners being the Chairman and converters of M/s Malaprabha Co-operative Spinning Mill, Saundatti, as they have taken the spinning mill on lease basis during relevant period. Respondent No.2 filed the written complaint to the jurisdictional police on 08.05.2009 against the petitioners in respect of both the petitions alleging that the petitioners have not paid the provident fund contribution of M/s Malaprabha Co-operative Spinning Mill, Saundatti from July 2006 to March 2008 about 21 months, which is calculated for a sum of Rs.05,03,443/- and requested the jurisdictional police to take action for the offences punishable under Section 406 and 409 of the I.P.C. Accordingly, the police have registered the F.I.R. in Crime No.268/2009 for the offences punishable under Section 408 and 409 of I.P.C. During the course of investigation, police have recorded the statement of witnesses and collected the material and report was received from the Provident Fund Office, Hubballi wherein it discloses that entire provident fund amount was paid :6: with interest. Based on the report of the Provident Fund Office, Hubballi, the Investigation Officer has submitted the 'B' report.
4. But as per the version of the complainant as per the complaint produced at Annexure-A, wherein it is mentioned that from the wages of the employees of the said establishment amount payable as employees share has been deducted as per details mentioned in the said complaint, the amount so deduced as however not been paid to the employees provident fund account No.1 with the State Bank of India as required by Para 38 of the Employees Provident Fund Scheme 1952. It is further alleged in the complaint that requests were made to the petitioners, who are the responsible persons to pay the said amount, but they have failed to do so. It is further mentioned that the petitioners whose names are mentioned in Para 3 in the said complaint are the persons in-charge and they are responsible for conduct of the business of the aforesaid establishment. By not paying the :7: employees share and contribution as mentioned in the complaint the petitioners have committed an offence under Section 406 r/w explanation 1 added to Section 405 of the Indian Penal Code. Hence, by filing such complaint before the police, the complainant requested the police to take suitable action in the matter.
5. Thereafterwards the police have conducted the investigation in the matter and ultimately the police have filed the 'B' summary report in the case, wherein they have stated that looking to the documents, they have collected from office of the Regional Provident Fund Commissioner, Hubballi, it is stated that the amount which is due from the month of June 2006 and March 2008-09 amounting to Rs.5,03,443/- has been received in the said Regional Provident Fund Commissioner's Office. Therefore, the police have submitted to the Court that the case is because of mistake of fact.
6. Thereafterwards as it is contended by the respondent/complainant that protest petition was filed to :8: the 'B' summary report and after considering the same, the learned Magistrate took the cognizance of the offences holding that there is a sufficient material to proceed in the case and ordered to issue summons to the accused. The said order is challenged by the respective petitioners in these two petitions.
7. Learned counsel appearing for the petitioners in Criminal Petition No.101817/2014 made the submission that when the 'B' summary report was filed by the Investigation Officer before the Court, the learned Magistrate ought to have passed some orders on the said report whether the report is accepted or not. But looking to the order of the learned Magistrate, he has not at all passed any orders so far as the acceptance or rejecting the 'B' summary report in this case. Learned counsel further made the submission that looking to the documents, which were collected by the police from the Regional Provident Fund Commissioners Office, Hubballi, the contribution amount was already paid and there is no fault committed :9: by the present petitioners herein. Accordingly, the police have reported the matter to the Court that there is no such offence committed and it is because of the mistake of fact. It is also the contention of the learned counsel appearing for the petitioner before filing such complaint directly to the police no permission was obtained by the complainant under the provisions of Section 14AC of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.
8. It is further contention of the learned counsel for the petitioner that since the petitioners are the public servants and the alleged offences even according to the complainants are during the course of the discharge of their officials functions there is a protection under Section 197 of the Cr.P.C. and without obtaining the prior sanction under Section 197 of the Cr.P.C. the complainant cannot proceed with. Hence, he made the submission that these material aspects were not at all taken into consideration by the learned Magistrate before taking cognizance and ordering for issuance of the process. It is also submitted : 10 : that the protest petition is not at all filed by the complainant in this case, it is filed by only the Advocate on behalf of the complainant. It is not in the form of the complaint and looking to the contents of the protest petition, it will not constitute the alleged offence. Therefore, the learned Magistrate was not justified in taking cognizance and ordering for issue of process inspite of all these legal infirmities in the case of the complainant, cognizance was taken. Hence, he submitted that the order passed by the learned Magistrate is illegal and it is not sustainable in law. In support of his contention, learned counsel for the petitioner in the said petition relied upon the following decisions.
i. ILR 1987 KAR 994
BASAPPA V/S STATE OF KARNATAKA
ii. LLJ 1995 (1) 780
STATE OF MAHARASHTRA V/S PANKAJ A
GUPTE
iii. CRIMES 1993(1) 1124
STATE OF MAHARASHTRA V/S
DR.BUDHIKOTA SUBHARAO
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iv. AIR 2005 SUPREME COURT 4413
CENTRE FOR PUBLIC LITIGATION AND
ANOTHER V/S UNION OF INDIA &
ANOTHER
v. AIR 2005 SUPREME COURT 3512
S.M.S.PHARMACEUTICALS LTD. V/S
NEETA BHALIA AND ANOTHER
vi. (1998) 6 SUPREME COURT CASES 288
EMPLOYEES' STATE INSURANCE
CORPORATION V/S S.K.AGGARWAL &
ANOTHER
vii. ILR 2017 KAR 507
DR.RAJESHWARI V/S THE STATE OF
KARNATAKA AND ANOTHER
9. Learned counsel appearing for the petitioners in another case Criminal Petition No.100485/2016 also submitted the similar points as canvassed by counsel for the petitioner in another petition. He also made the submission that he adopts the arguments advanced by learned counsel Sri F.V.Patil on behalf of the petitioner in the connected petition. Hence, both learned counsel appearing for the petitioners submitted to allow the petitions and to set aside the order of the learned Magistrate taking cognizance and ordering for issue of : 12 : process and also the entire proceedings in the said criminal cases.
10. Per contra, learned counsel Sri P.V.Gunjal appearing on behalf of the respondent/complainant in Criminal Petition No.101817/2014 during the course of his submission, he argued that taking prior permission as per Section 14AC of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 will not arise in this case, it is his submission in this regard that taking prior permission under the said provision will arise if the alleged offences are under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act. But no such offences are alleged under the said Act and the alleged offences are only under the I.P.C. Therefore, taking prior permission will not arise at all. So far as prior sanction under Section 197 of the Cr.P.C. is concerned, he made the submission that this will arise only in respect of bonafide officers while conducting and discharging their duty in good faith only for such officers it is required and if : 13 : it is not under the bonafide or good faith as in this case so far as the petitioners are concerned no such prior sanction under Section 197 of the Cr.P.C. is required, he also made the submission that taking prior sanction under Section 197 is also not required at the time of taking cognizance by the Magistrate, even such permission can be obtained at the subsequent stage and it can be produced before the Court. He further made the submission that the main allegation is amount which can be deducted by their contribution the said amount was not at all paid to the Regional Provident Fund Commissioners Office, Hubballi and thereby the petitioners in both the petition who are the responsible officers have committed the alleged offences i.e. misappropriation and criminal breach of trust as alleged in the complaint. It is his further contention even if the 'B' summary report is filed by the police, the Magistrate need not look into the 'B' summary report even he need not look into the contents of the protest memo. Looking to the materials placed on record if the Magistrate is satisfied that there is a sufficient and prima facie : 14 : material as against the petitioners/accused, cognizance can be taken and the order for issue of the process can be made by the learned Magistrate. Hence, he lastly made the submission that the order passed by the learned Magistrate taking cognizance and the issue of process is strictly in accordance with law, no illegality has been committed by the learned Magistrate. Hence, the petitions filed are not at all having any merit. Hence, same are to be rejected.
11. Learned counsel Sri V.M.Kharvi appearing for the respondent/complainant in another connected petition during the course of his argument firstly he adopted the submissions made by learned counsel Sri P.V.Gunjal and in addition to that he made the submission that looking to the 'B' summary report, the evidence of the complainant and the witnesses were not at all recorded by the police, even without recording the statement of complainant and the witnesses such a report has been filed by the police. It is also his contention that the payment of the amount by : 15 : the petitioners is only after the police filing the report and the learned Magistrate taken cognizance in the matter. He also submitted that it is only for a temporary arrangement that they have made such payment. The use of the said amount, even for a temporary period amounts to misappropriation and criminal breach of trust in the case. Learned counsel further made the submission that referring to the judgment of the Hon'ble Apex Court dated 25.04.1985 rendered in the case of Bhagwant Singh V/s Commissioner of Police and another. Learned counsel draw the attention of this Court to Para 4 of the said order and submitted that even looking to the observations by the Hon'ble Apex Court, the learned Magistrate has followed the said procedure in this case and after appreciating the materials placed before him, he rightly took the cognizance and ordered for issue of the process. Hence, he submitted that no illegality has been committed by the learned Magistrate in coming to such conclusion and there is no merit in the petition. Same is to be rejected.
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12. Learned counsel also made the submission that so far as the alleged offences under Section 406 and 409 of I.P.C. is concerned, there are specific allegations made in the complaint.
13. I have perused the grounds urged in both the petitions, order passed by the learned Magistrate taking cognizance of the offences and issue of process as against the petitioners. The contents of the complaint dated 08.05.2009 filed before the Sub-Inspector of Police, Saundatti Police Station, Belagavi District filed by one D.Mahadev, Enforcement Officer, so also I have perused the protest petition filed by the learned counsel appearing for the respondent/complainant.
14. The first and foremost contention of the learned counsel appearing for the petitioners in this case that, as the protest petition is not in the form of complaint, the learned Magistrate was not supposed to look into the said protest petition for the purpose of taking cognizance in the matter. In this connection, I have perused the : 17 : decisions relied upon by the learned counsel appearing for the petitioners in this case. One of the decisions is ILR 1987 KAR Page No.994. Looking to the said decision, it is observed by the learned Judge in para No.4 of the said decision that, "When on investigation, the police submit 'B' summary report or a 'C' summary report saying complaint is false of that it is a civil dispute or that there is no evidence three courses are open to the Magistrate; (i) either to accept the 'B' summary report and drop all further action, or (ii) on consideration of the 'B' report direct the police to make further investigation of (iii) take cognizance of the offence, if any, disclosed on the very report. Where the Magistrate accepts the 'B' summary report the only course left to the Magistrate is to drop all further action. On such acceptance of the 'B' report he having not taken cognizance, no criminal proceedings would be said to be instituted."
15. Looking to the case on hand, the complaint is not a private complaint filed under Section 200 of Cr.P.C : 18 : before Magistrate. It is a complaint filed directly before the police requesting to take action in the matter and on investigation when the police have submitted the 'B' summary report, the step open to the learned Magistrate is, Magistrate may take cognizance on the original complaint made to him record sworn statement under Section 200 of Cr.P.C in the case, if it is a case on the private complaint filed under Section 200 of Cr.P.C. If there is no complaint made to the Magistrate the question of Magistrate taking cognizance on the basis of the protest memo does not arise, particularly when the protest memo is not in the form of complaint and there are no allegations constituting any offence in the protest memo.
16. I have perused the protest memo admittedly it is not by the complainant, but the protest memo is filed by the learned counsel appearing on behalf of the complainant. Looking to the protest application, it is neither by Sri V.V.Antin, Advocate for the complainant. The contents of the protest application reads as under:- : 19 :
"That the complainant has filed the complaint against the accused persons for the offences punishable under Sections 406, 409 of IPC.
That the Soundatti Police without following the due process of law and without recording the statement of the complainant and his witnesses, has submitted 'B' mistake of fact, hence this protest application.
That the complainant is diligent in contesting the matter and there is every chance of succeeding in it.
It is therefore, most humbly prayed that the complainant be availed with an opportunity to lead his evidence and that of his witnesses to prove his case in the interest of justice."
17. Looking to the contents of this protest application, it shows that it is not by the complainant himself but by his Advocate same is not in accordance with law. When that is so the question is whether this protest memo is in the form of the complaint and whether it is complaint as defined under Section 2(d) of the Cr.P.C. Looking to the materials and the contents of the protest petition it is not in the form of complaint, when that is so, : 20 : the question of learned Magistrate looking into the protest application and holding that there is sufficient material and taking cognizance is patently illegality and against provisions of law. Apart from that as I have observed about even with regard to the 'B' summary report is concerned, though the learned Magistrate supposed to pass some order whether he is going to accept it or reject the summary report. Looking to the order passed by the learned Magistrate, which is challenged in this case, absolutely there is no reasons and there is no acceptance or rejection of the 'B' summary report.
18. I have also perused another decision relied upon by learned Counsel appearing for the petitioner reported in ILR 2017 KAR 507. Even looking to this decision also the learned Magistrate can take cognizance on the protest application, firstly if it is in the form of complaint, secondly if the protest petition and its contentions are making out or constituting alleged offence. But looking to the contents of the protest petition and the : 21 : allegations as against the petitioner, absolutely there is no specific allegations mentioned in the protest petition constituting the alleged offences. Hence earlier as no private complaint was filed by the respondent-complainant before Court under Section 200 of Cr.P.C., the question of taking cognizance, on the basis of said protest application does not arise at all. If there is complaint under Section 200 of Cr.P.C directly to the Magistrate at the first instance and in such case when the matter was referred to the police for investigation and after conducting investigation if there is 'B' summary report field by police, the Magistrate can ignore the 'B' summary report and relying upon contents and the original complaint which was under
Section 200 he could have taken cognizance of the offences that is also left open to the learned Magistrate in the provisions of the Cr.P.C. Hence as admittedly no such private complaint was filed before the Court and in view the proposition of law as relied upon in the two decisions, which I have referred above the order of the learned : 22 : Magistrate taking cognizance and issuing the process is patently illegal and it is not sustainable in law.
19. Though the parties have raised other contentions which were referred above and when the taking cognizance itself is illegal the question of considering all other points does not arise for consideration. Accordingly, both petitions are allowed. The order of the learned Magistrate dated 07.12.2013 passed in C.C.No.1261/2013 (Savadatti Police Station Crime No.268/2009) taking cognizance and issuing the process so also the proceedings initiated in the said Crime No.268/2009 are hereby quashed.
20. In view of the disposal of the main petition, the question of considering interim application I.A.Nos.1/2015 and 1/2016 does not survive for consideration.
Accordingly, applications are disposed of.
Sd/-
JUDGE CLK/CKK