Karnataka High Court
Shri. Manjunath Urban Co-Op Credit ... vs Sri. Arun S/O Subhash Patange on 2 March, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION No.102296/2021
Between
1. Shri Manjunath Urban
Co-op Credit Society Ltd.,
Near Chawadi, At Post:Terdal
At & Post : Terdal - 587315
Represented by its Manager
Shri Shridhar s/o Mahadev Shivapuji
Age 32 years, Occ: Service
R/o Near Government Chavadi
At/Post : Terdal - 587315
Tal: Rabkavi - Banahatti
Dist: Bagalkot.
2. Sri Shridhar, s/o Mahadev Shivapuji
Age 36 years, Occ: Service in
Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti, Dist: Bagalkot.
3. Sri Basappa, s/o Sangappa Hadpad
Age 44 years, Occ: Business and Agriculture
Service in Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
2
4. Sri Anand, s/o Shankrappa Uppin
Age 43 years, Occ: Service in
Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
5. Sri Venkatesh, s/o Vitthal Pujari
Age 43 years, Occ: Business & Agriculture
Member of Board of Directors
Shri anjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
6. Sri Mohan, s/o Vitthal Pattar
Age 43 years, Occ: Business & Agriculture
Member of Board of Directors
Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
7. Sri Parappa, s/o Mahalingappa Kumbar
Age 52 years, Occ: Business & Agriculture
Member of Board of Directors
Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
8. Sri Basavaraj s/o Shivangouda Kalburgi
Age 42 years, Occ: Business & Agriculture
Member of Board of Directors
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Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
9. Smt.Neelawwa w/o Parappa Kallolli
Age 44 years, Occ: Household
Member of Board of Directors
Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot.
10. Sri Ganapati, s/o Laxman Gadiwaddar
Age 43 years, Occ: Business & Agriculture
Member of Board of Directors
Shri Manjunath Urban Co-op Credit
Society Ltd., Near Government
Chavadi, At & Post: Terdal-587315
Tal: Rabakavi - Banahatti
Dist: Bagalkot. ...Petitioners
(By Sri Nagarathna S Pattar for Sri Shamsundar N Pattar Advocates)
And
1. Sri Arun s/o Subhash Patange
Age 38 years, Occ: Agriculture
r/o Patange Complex, Behind
Kannada Boys School
At & Post: Terdal-587315
Tal: Rabkavi - Banahatti &
Dist: Bagalkot.
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2. The State of Karnataka
Though Terdal Police
Bagalkot District
r/by State Public Prosecutor
High Court Bench, Dharwad. ... Respondents
(By Sri Shivaraj P Mudhol, Advocate for R1,
Sri Ramesh I Chigari, HCGP for R2)
This petition is filed under Section 482 of the Code of
Criminal Procedure, 1973, praying to the proceedings intiated
against the petitioners/accused No.1 to 8, 11 and 12 may please
be quashed in PC No.225/2018 renumbered after transfer as PC
No.35/2020 pending on the file of Senior Civil Judge and JMFC,
Banahatti, in PS Crime No.136/2018 for the offences punishable
under Sections 193,203, 205, 406, 418, 420, 500, 501 read with
Section 149 of IPC.
This petition coming on for admission this day, the Court
made the following:
ORDER
The 1st respondent filed a private complaint under Section 200 of Cr.PC alleging that petitioner No.1 is the society and the 1st respondent - complainant is a borrower of loan from the 1st petitioner - society and is having savings bank account in the said Society. The complainant has cleared all the dues payable to the Society and in spite of complainant having cleared all the dues of the Society in question, the 1st petitioner-accused No.1- society filed a case against the complainant before the Assistant Registrar of Co-operative Societies under Section 70 of the 5 Karnataka Co-operative Societies Act and thereafter an award dated 11.4.2016 was passed against the 1st respondent, against which, the 1st respondent filed an appeal before the Karnataka Appellate Tribunal. The order passed by the Assistant Registrar of Co-operative Societies was set aside and the matter was remitted to the Assistant Registrar of Co-operative Societies for reconsideration of the claim of the parties afresh.
2. It is further alleged that the complainant has discharged the loan, however, the petitioners by creating false documents to the effect that the 1st respondent availed fresh loan have initiated proceedings against the Assistant Registrar of Co-operative Societies It is further alleged that the petitioners published the name of the complainant in the defaulters list by displaying in the public place.
3. The learned Magistrate after taking cognizance of the offences alleged against the petitioners referred the matter to the jurisdictional police for investigation under Section 156(3) of Cr.PC.
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4. The police after investigation filed the charge sheet against the petitioners for the offences punishable under Sections 193, 203, 205, 406, 418, 420, 500, 501, 149 of IPC. Taking exception to the same, this petition is filed.
5. Learned counsel appearing for the petitioners would submit that though some of the offences alleged against the petitioners are cognizable, the complainant has made an effort to register the FIR against the petitioners, as required under Section 154(1) of Cr.PC and in case of refusal to register the complaint by the officer incharge, the complainant was required to approach the higher officer for registering the complaint. The private complaint filed by the complainant without complying with the requirements of Section 154(1) & 154(3) of Crpc is not maintainable in view of the decision of the Apex Court in the case of Priyanka Srivastava and others -vs- State of UP and others reported in (2015) 6 SCC 287. . She further submits that in the report submitted by the State Forensic Science Laboratory, Madiwala, Bengaluru, the allegation that the signatures of the complainant was forged is not proved insofar 7 as with regard to the forgery of the signature of the complainant, since it is opined that the signatures marked as Q1 to Q15 and the specimen signatures marked as R1 to R4 are not comparable with one another since they are showing pattern difference. Hence, she submits that the impugned charge sheet against the petitioners is not maintainable and is required to be quashed.
6. On the other hand, learned counsel for the 1st respondent - complainant submits that some of the offences are non-cognizable and as such the private complaint filed under Section 200 of Cr.PC without complying with the requirements of Section 154(1) and 154(3) of Cr.PC is maintainable. He further submits that the allegation made in the FIR and also charge sheet clearly disclose the commission of offences by the petitioners. The present petition is not maintainable since the petitioners have got remedy for discharge under Section 239 of Cr.PC. Hence, he submits that the present petition is devoid of merit and sought for dismissal of the petition. 8
7. I have examined the submissions of the learned counsel for the parties.
8. Admittedly, some of the offences charged against the petitioners are cognizable and some of the offences are non- cognizable. Hence, the petitioners were required to make an effort before the police station concerned for registering the FIR against the petitioners for the offences alleged against them and in the event of the officer in-charge of the police station refusing to register the FIR, the complainant was required to approach the higher officer by sending the complaint to the higher officer through RPAD. In the present case, the complainant has not made any effort to register the FIR against the petitioners by the complainant as required under Sections 154(1) and 154(3) of Cr.PC. The Apex Court in the case of Priyanka (supra) at paragraph 27 has held as follows:
"27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can 9 make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal Court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The arrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."10
9. The 1st respondent - complainant having not complied with the requirements of Section 154 of Cr.PC, the complaint filed by the 1st respondent is not maintainable. Even otherwise, there is no specific allegation in the complaint against the petitioners as to how and in what manner they have committed the offences as alleged against them in the charge sheet. The FSL report also does not indicate that the signature of the complainant is forged so as to create the documents to the effect that the complainant has availed the fresh loan. In the absence of any material so as to constitute the commission of offence as alleged against the petitioners, it would be appropriate to quash the impugned proceedings
10. Though the remedy of discharge is available with the petitioners under Section 239 of Cr.PC, this Court in exercise of inherent power under Section 482 of Cr.PC can quash the impugned proceeding so as to prevent abuse of process of law and also when the possibility of petitioners being convicted for the offences alleged against them is remote and bleak. Hence, the submission of the learned counsel for the 1st respondent that 11 the petition filed under Section 482 of Cr.PC is not maintainable in view of availability of remedy of discharge under Section 239 of Cr.PC is not acceptable. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed;
ii) The impugned proceedings in CC No.2/2022 pending on the file of the Senior Civil Judge & JMFC, Banahatti is hereby quashed.
The dispute between the parties shall be adjudicated strictly on the available material on record and the adjudicating authority shall not be influenced by the order passed by this Court.
Sd/-
JUDGE bkm