Karnataka High Court
Mr.Vincy Deniel Pinto vs The State Of Karnataka on 27 September, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.4335 OF 2022
BETWEEN:
MR.VINCY DENIEL PINTO,
AGED ABOUT 52 YEARS,
RESIDING AT KULASHEKARA,
MANGALORE - 575 030.
... PETITIONER
(BY SRI TULSI KUMAR B.N, ADV.)
AND:
1. THE STATE OF KARNATAKA
BY PUTTUR TOWN POLICE STATION,
PUTTUR SUB DIVISION,
PUTTUR,
REP. BY POLICE INSPECTOR.
2. MR.FRANCIS DWOUZA,
AGED ABOUT 58 YEARS,
DEPUTY GENERAL MANAGER,
CAMPCO CHOCOLATE FACTORY,
KEMMINJE PUTTUR - 574 201,
DAKSHINA KANNADA.
... RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1,
SRI SANDESH J. CHOUTA, SR. ADV. A/W
SRI SIJI MALAYIL, ADVOCATE FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.,PRAYING TO QUASH THE PROCEEDINGS IN CR.NO.40/2020
IN THE COURT OF THE PRL. SENIOR CIVIL JUDGE AND ACJM,
PUTTUR, AGAINST THE PETITIONER U/S 418, 417, 420, 465, 468,
486 R/W 34 OF IPC (ANNEXURE -B).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question proceedings in Crime No.40 of 2020 registered for offences punishable under Sections 417, 418, 420, 465, 468, 471, 482, 486 and 34 of the IPC and pending before the Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Puttur.
2. Heard Sri B.N.Tulsi Kumar, learned counsel appearing for the petitioner, Sri K.S.Abhijith, learned High Court Government Pleader for respondent No.1 and Sri Sandesh J. Chouta, learned senior counsel appearing for respondent No.2.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- 3
Petitioner is accused No.2 and the 2nd respondent is the complainant. The petitioner is the co-owner of one Limited Liability Company in the name and style of M/s. Cospack General Trading LLC ('the Company' for short) having its office at different parts of the globe. The 2nd respondent is the representative of M/s. Campco Chocolate Factory ('the Factory' for short) having its office at Puttur, Dakshina Kannada. Therefore, the petitioner, co-owner of the Company is accused No.2. Marketing and Local Executive is accused No.1 and the 2nd respondent is the complainant. Accused No.1 is not before the Court. It is alleged that a complaint comes to be registered by the 2nd respondent on 20.06.2020 alleging that accused No.1 Jeevan Lobo approached the Factory with regard to the supply of cocoa beans and the product was supposed to be routed through Thailand which would mean import of origin of cocoa bean was supposed to be from Thailand. The beans were traded in that way between accused No.1 and the 2nd respondent.
4. It is alleged based upon the said receipt of beans from the hands of accused No.1, the 2nd respondent/Factory claims exemption as was available under a Scheme from Government of 4 India close to 9 crores as it was the then policy that if the beans were routed through Thailand pack that is imported enables an importer to claim such exemption under the Asean-India free trade area preferential tariff. Under the Scheme a certificate of origin was to be issued. It is alleged that accused No.1 represented to the 2nd respondent/complainant that Cocoa beans would be routed through Thailand or are sourced and routed though democratic republic of Cango. The Directorate of Revenue Intelligence ('DRI' for short) searched the premises of the 2nd respondent after it claimed exemption under the aforesaid Scheme and comes to know that the beans in the bag were actually from the democratic republic of Cango and exemption had been claimed projecting it that it was from Thailand. Therefore, the DRI, Government of India issues a show cause notice to the 2nd respondent seeking payment of penalty for having hoodwinked Union of India. The 2nd respondent pays the penalty. After payment of penalty, he registers the subject crime against accused No.1 and the petitioner, accused No.2 for offences punishable under Sections 417, 418, 420, 465, 468, 471, 482, 486 and 34 of the IPC. After registration of the crime on 20.06.2020 the Police are conducting investigation and have not 5 filed a charge sheet even as on date. Challenging continuance of investigation, accused No. 2/co-owner of the Company is before this Court in the subject petition.
5. The learned counsel appearing for the petitioner would contend with vehemence that the complaint so registered by the 2nd respondent narrates graphic details as to how accused No.1 approached the Factory and how it was lured into buying cocoa beans from accused No.1. The entire narration in the complaint is against accused No.1. Only in the last paragraph, because the petitioner is a co-owner of the Company in which the accused No.1 has been the local Executive, he has been dragged into these proceedings. He would further take this Court through the documents appended to the petition to demonstrate that the complainant was always aware that cocoa beans have not come from Thailand but came from Cango and it has the knowledge of such invoices also. He would submit that if at all the 2nd respondent would have any grievance it should be against accused No.1. When there is no role of accused No.2 in the entire proceedings, he 6 cannot be proceeded against that too criminally for no liability of his.
6. On the other hand, the learned senior counsel appearing for the 2nd respondent/complainant would seek to refute the submissions to contend that the petitioner herein, who is accused No.2, is primarily responsible for whatever has happened as he is the co-owner of the Company and accused No.1 being a local Executive had misrepresented to the complainant that cocoa beans were coming from Thailand while they actually come from Cango with superficial treatment and cleaning by the accused herein and was supplied to the complainant. The complainant believing that it is from Thailand also sought exemption from the hands of the Union Government. It is when the officials of DRI searched the premises, they came to know that it is from Cango and not from Thailand and had to pay heavy penalty. Therefore, the petitioner is also responsible for what has transpired, as the accused together have cheated the complainant and would submit that the proceedings be permitted to continue against the petitioner as well. 7
7. The learned High Court Government Pleader would contend that the Police are still investigating the matter. Notwithstanding the fact that it is now more than 2 years and 2 months that the crime has been registered, the subject petition is filed only on 10th May 2022 and would submit that the petition be dismissed permitting the investigation to continue and final report to be filed in the case at hand.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
9. The status of ownership or business that the petitioner and the 2nd respondent are engaged as narrated hereinabove would not call for reiteration. The invoice that is generated by accused No.1 on behalf of the Company reads that import of origin is Thailand. The cocoa beans arrive at the 2nd respondent/Factory. The receipt of said cocoa beans is in terms of a particular acknowledgment or bill of lading. The relevant part of the bill of lading or the final sales invoice reads as follows:
8
"As above, a total of 189348 Kgs of Cocoa Beans of "Uganda origin"
were imported by M/s Cospack from M/s Esco Uganda vide above three BLs under contract CPA 1229/18.
... ... ...
FINAL SALES INVOICE
INVOICE NO. 234/CPA1230/18
DATE: 9th January 2019
CLIENT REF: CPA1230/18
DESCRIPTION 1,520 Bags of 62 Kg Uganda Cocoa
Beans good fermented.
FCR No. 009367
FCR Date: 9th November, 2018
GROSS WEIGHT 95,608 Kgs.
NETT WEIGHT 94,240 Kgs.
PRICE US$2,022.00/MT FOB Mombasa
USD 190,553.28
At your Debit
(One hundred and ninety thousand and five hundred and fifty three US dollars and twenty eight cents) Payment terms: 50% against FCR, 50% against original documents."
There are many such final sales invoices that are produced along the statement of objections of the 2nd respondent/complainant which would demonstrate that the business of importing cocoa beans either from Thailand or Uganda origin was not the first time when the complaint was registered. These are transactions of 2018. The DRI would search the place of the 2nd respondent and the result of search would be a show cause notice issued under 9 Section 28(4) of the Customs Act, 1962 alleging that the Company was supplying cocoa beans to the complainant herein procuring it from African countries and routing it through Thailand after carrying out a minor processing fumigation and grading. On the basis of the intelligence output, the DRI had conducted a search in the premises of the Factory and had come across 4105 bags of cocoa beans which were claimed to be of Thailand origin but were actually from African origin. Further, during the search it was informed by the complainant that their overseas supplier of cocoa beans in Dubai was Mr. Jeevan Lobo who was currently in the City then.
10. Accused No.1 Jeevan Lobo appears before the DRI on 28.11.2019 and 29.11.2019 and tenders his statement. While tendering his statement, he also narrates that Vincy Deniel Pinto, the petitioner herein is also co-owner of the Company. Except this statement there was nothing that accused No.1 narrated about accused No.2, the petitioner. The further statement made by him was that the petitioner herein holds major share and was the co- decision maker. Based upon these statements, a fine or penalty was imposed upon the complainant/Factory. The reason for 10 imposing fine was, at the relevant point in time Government of India had a Scheme for granting exemption if cocoa beans are sourced from Thailand under the ASEAN-India Free Trade Area Preferential Tariff. Since beans though claimed to be from Thailand but were actually from Uganda in Cango, a penalty was imposed. After imposition of penalty, the subject crime is registered against accused No.1 and the petitioner by registering a complaint before the jurisdictional Police. Since the entire issue now springs from the complaint, it is germane to notice the complaint itself and it reads as follows:
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10. DzÀÝjAzÀ F §UÉÎ vÀ¤SÉ £Àqɹ J¢æAiÀÄgÀ «gÀÄzÀÝ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆAqÀÄ ¸ÀA¸ÉÜUÉ £ÁåAiÀÄ MzÀV¹PÉÆqÀ¨ÉÃPÁV F ªÀÄÆ®PÀ PÉýPÉƼÀÄîvÉÛãÉ."13
A perusal at the complaint would indicate the representation made by accused No.1 who is also a co-owner and an Executive of the Company to the 2nd respondent/complainant with whom the 2nd respondent generated talks or entered into agreements for procuring cocoa beans from Thailand. If every act of procuring of cocoa beans from Thailand was settled with accused No.1 it is accused No.1 who would be responsible. Merely because accused No.2 is a co-owner would not mean that he is a signatory or privy to any of the talks between the complainant and accused No.1. The entire narration in the complaint which becomes a crime in Crime No.40 of 2020 for offence punishable as afore-quoted hereinabove, can at best be laid against accused No.1 as, what is alleged is offences punishable under Sections 417, 418 and 420 all deal with cheating. The ingredients necessary for these provisions are found in Section 415 of the IPC. All these sections read as follows:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".14
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
... ... ... ...
417. Punishment for cheating.--Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.--Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
... ... ... ...
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
If Section 420 of the IPC is to be laid against the present petitioner, he must have indulged in the act of inducing the complainant to enter into any agreement for parting with any property with a dishonest intention from the inception of the transaction. If the complaint as extracted hereinabove is noticed, all of the narration is against accused No.1. Accused No.1 is alleged to have lured the 15 complainant into generation of cocoa beans which resulted in the complainant claiming exemption from the hands of the Union Government. Merely because the petitioner is a co-owner and the statement of accused No.1 is that the petitioner is the decision maker cannot lead to even prima facie conclusion that the petitioner is also liable to face criminal proceedings, when there being no role of his, in the entire transaction, as the invoices that are generated are all of accused No.1 and accused No.1 is the person who has transacted with the complainant. The complaint only mentions the name of accused No.2/petitioner herein at the penultimate paragraph of the complaint alleging that both of them have conspired together to cheat the complainant.
11. Even the show cause notice so issued by the DRI upon which lot of emphasis is laid by the learned senior counsel representing the complainant would all narrate instances as to how the business has gone on, and in every question and answer it is clearly narrated that it was all along Jeevan Lobo/accused No.1 who was responsible. Every where the mention is, that the petitioner holds a major share in the Company and is a co-decision maker. 16 The DRI further notices that from what is noticed hereinabove, the petitioner is the person who is controlling both the Companies, M/s. Cospack Asia International Company, Thailand and M/s. Easypack International Company at Bangkok. A mere statement of the said kind would not lead to a criminal liability of the petitioner, if the Accused No.1 has indulged in the entire alleged fraud or has misrepresented, as the offence of cheating can be laid against a person who has done it, and not against a person who may appear to have done it. In the teeth of clear facts that accused No.1 has indulged in all this, accused No.2 is dragged into the proceedings sans substance.
12. To consider the issue a little further, it is germane to notice the questions and answers elicited by the DRI pursuant to the search. The relevant questions and answers which form a part of the show cause notice are germane to be noticed. The answer to Question No.13 is by the Managing Director of the Factory one Suresh Bhandary. The said Suresh Bhandary tenders his statement on 26-02-2020 which reads as follows:
17
"Q.13. From the packing material i.e., gunny bags of imported Cocoa Beans declared to be wholly obtained from Thailand which were recovered from the M/s Campco Chocolate Factory under Mahazar dated 28-11- 2019. It was clearly mentioned on one side of gunny bags as a Product of DRC i.e., Cocoa Beans imported are product of Democratic Republic of Congo. As M/s Campco has claimed the benefits under ASEAN-India FTA on its import of Cocoa Beans by wrongly declaring it to be wholly obtained from Thailand. Please explain why was such clear marking on the gunny bags of imported Cocoa Beans was overlooked by M/s Campco and also was it not the duty of M/s Campco as a importer to carry out due diligence/verification before claiming the duty benefits under ASEAN-India FTA. Also explain what are the verification processes carried out by M/s Campco, if any, before claiming the benefits under ASEAN-India FTA on its import of Cocoa Beans claiming to be wholly obtained from Thailand.
Ans.13: The packing material i.e., the gunny bags, of all imported beans of Uganda and Thailand supplied by M/s Cospack Group had the identification mark "PRODUCE OF DRC FEVES DE CACAO 107 004/0012CA/0CA/CA/2019" on one side and the country name like "UGANDA" of "THAILAND" on the other side. We were under the notion that the identification mark "PRODUCE OF DRC FEVES DE CACAO 107 004/0012CA/ODO/CA/2019" is related to the supplier M/s Cospack as some kind of his shipping code and did not realize that it could be name of any other country. All documentary evidence received by us like country of origin, bill of lading, bill of entry showed origin and part of loading as either Uganda or Thailand matching to our purchase order.
Further, we did not import bulk quantity through any other supplier other than M/s Cospack and hence we were not able to differentiate the details as mentioned on the gunny bags. Moreover, due to limited knowledge on import/export, being a cooperative society of the farmers, we entrusted the complete responsibility of customs clearance, proper documentation, quality compliance, legal compliance relating to imports and including sourcing of beans in foreign countries to Mr. 18 Jeevan Lobo of M/s Cospack. We were also confident that in case of any wrong doings by the supplier, there is always the Customs authorities to check into such issues. Hence. Our Purchase order clearly mentions that payment will be done and beans will be accepted only if all the above conditions mentioned in our purchase order is met. On the contrary, Mr. Jeevan Lobo has also mentioned in all his quotes that the quality and the customs clearance will be directly handled by him. I am here submitting sample copies of Pos and quotations in support of our claim".
"From the above submissions made by M/s Campco, it is amply clear that they have not exercised due diligence regarding correctness of the documents such as Certificate of Country of Origin submitted by Shri Jeevan Lobo to the Customs on their behalf as Shri Jeevan Lobo has informed them that he will be assisting them in Customs clearance and delivering the Cocoa Beans at their factory gates as per the quotation submitted by him to M/s Campco. Therefore, M/s Campco blindly claimed the benefits under ASEAN-India FTA on their import of Cocoa Beans based on the certificate of Country of Origin only, claiming such Cocoa Beans to be wholly obtained from Thailand as provided by Shri Jeevan Lobo of M/s Cospack.
5.8. From the documents recovered from email id of Shri Jeeevan lobo, International Sales Manager, M/s Cospack, it is seen that M/s Cospack Asia International Company Limited, Thailand has imported around 1410 MT of Cocoa Beans from various African countries out of which it has exported around 1210 MT of Cocoa Beans to M/s Campco."
(Emphasis added) The answers tendered to the questions posed by the DRI would clearly indicate that the petitioner was nowhere involved in the 19 entire transaction. It is admitted that all legal compliance relating to imports including sourcing of beans in foreign country was the work of Mr. Jeevan Lobo, accused No.1. No doubt, the Managing Director defends the action, but confirms that Jeevan Lobo has also mentioned in all his quotes that the quality and the customs clearance will be directly handled by him. The DRI then after eliciting such answers comes to conclude that from the statements given by the Managing Director it becomes amply clear that the entire transaction was handled by Mr. Jeevan Lobo. The DRI also concludes that certificate of country of origin was submitted by Mr. Jeevan Lobo to the customs on M/s Campco behalf and Mr. Jeevan Lobo has informed that he will assist them in customs clearance and delivering cocoa beans to their factory gates as per the quotation. It is, therefore, concluded that because of Mr. Jeevan Lobo's assurance the benefits were claimed under ASEAN-India Free Trade Agreement.
13. Nowhere, in any of the questions M/s Campco alleges any role of the petitioner. Again to answer Nos. 8 and 9 which forms part of the statement of objections, the Managing Director 20 informs that Mr. Jeevan Lobo had wrongly informed them that Cocoa Beans are wholly obtained from Thailand. The role of Mr. Jeevan Lobo is also noticed by the DRI at clause 7.2 which reads as follows:
"7.2. Role of Shri Jeevan Lobo of M/s Cospack General Trading LLC, Dubai - Shri Jeevan Lobo, International Sales Manager, M/s Cospack is also one of the Director of M/s Cospack General Trading LLC, Dubai. Shri Jeevan Lobo along with the other directors of M/s Cospack was instrumental in hatching a plan of routing the Cocoa Beans of African Origin through Thailand for supplying the same to M/s Campco in India after carrying out small processing activities such as cleaning, grading and then repacking them in the gunny bags, having marking as Products of Democratic Republic of Congo before supplying them to M/s Campco. Further, he was also coordinating with M/s Suriya Shipping Co. Ltd., in obtaining false country of Origin Certificate to claim that the Cocoa Beans imported from African countries to be originated from Thailand which were given to M/s Campco for availing duty benefits. All the above discussed evidences were actually recovered from Shri Jeevan Lobo's email ids ([email protected]/[email protected]/Jeevanlob [email protected]). As confirmed by Shri Suresh Bhandary, MD M/s Campco Shri Jeevan Lobo was the sole point of contact for them on behalf of M/s Cospack."
Based upon the aforesaid questions, answers and statements what the DRI observed is only that, it appears that the petitioner is the person who is controlling both M/s Cospack Asia International Limited, Thailand and M/s Easypack International Co. Ltd., Bangkok. Except this statement, there is no indication of the role 21 of the petitioner anywhere. The complaint does not even make a reference to the name of the petitioner. The entire complaint revolves round accused No.1 Mr. Jeevan Lobo. With all these factors, where the role of the petitioner does not even indicate to its minutest sense, on the ground that he is likely to be the kingpin in the entire episode, criminal law that is set in motion cannot be permitted to be continued against the petitioner. The Managing Director of complainant-Factory in his statement or to the questions and answers given to the DRI nowhere even mentions the name of the petitioner, as the petitioner was nowhere in the picture with the deal of accused No.1 with the complainant-Factory. The DRI also did not elicit anything from any of the witnesses with regard to any role that is played by the petitioner.
14. If there is no role played by the petitioner, permitting further proceedings to be continued against him would, in the considered view of this Court, become an abuse of the process of law. It is only at the time of submissions made before this Court, the role of the petitioner is sought to be glorified without there being any substance in the matter. Merely because the petitioner is 22 a partner in the Company, criminal proceedings against him for no role of his cannot be permitted to be continued. It has been two years since registration of the crime. The crime is registered on 20-06-2020 and no final report is yet filed by the Police. The learned High Court Government Pleader has also placed original investigation papers before this Court for perusal. A perusal of the papers would indicate that no progress in investigation qua the petitioner did take place. Therefore, if at all the allegation has to be answered, it has to be by accused No.1.
15. The other offences alleged are the ones punishable for forgery and using forged documents to be genuine, as they are the ones punishable under Sections 465, 468 and 471 of the IPC. It is no where alleged that the petitioner had indulged in forgery. The procuring of the product is the agreement that was entered into between accused No.1 and the complainant. Whether the bags that have been received from Cango was a fact that the 2nd respondent/complainant was aware or not would be a matter of trial only insofar as accused No.1, as nowhere in the agreements between accused No.1 and the 2nd respondent/complainant, the 23 name of accused No.2/petitioner figures. If accused No.2 does not figure in any of the representations made or even the findings of the DRI in its show cause notice, merely because he is one of those who is alleged key decision maker in the Company, it would not mean that he would become responsible for what has happened in the alleged episode of crime, since this is a criminal proceeding where there has to be foundation for an allegation even prima facie to permit further proceedings to continue. It is also germane to notice that the complainant has instituted a suit in commercial O.S.No.443/2021 pending before the commercial Court of the jurisdiction for recovery of a sum of Rs.14,40,05,816/- which is pending adjudication before the concerned Court.
16. Mere usage of the word "co-decision maker" will not make the petitioner liable for criminal action, as it is criminal proceedings that are set into motion without there being any particular overt act performed by the petitioner or a clear role of his emerging in the entire episode of alleged crime, in the considered view of this Court, such proceeding cannot be permitted to continue, particularly, when the act in its entirety is performed by accused No.1. The allegation 24 in the complaint is only against accused No.1. Therefore, it is for accused No.1 to justify or defend the action and not the petitioner. Reference being made to the judgment of the Apex Court in the case of STATE OF HARYANA V. BHAJAN LAL1 in the circumstances becomes apposite. The Apex Court has held as follows:
"15. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.PC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana v. Bhajan Lal (supra) as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are 1 (1992 Supp. 1 SCC 335) 25 taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for 26 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
16. The principles laid down by this Court have consistently been followed, as well as in the recent judgment of three Judge judgment of this Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra2.
(Emphasis supplied) The petitioner has preferred two applications, one seeking stay of LOC and the other permitting him to travel. Both these applications would not survive for consideration, as they would consequentially become unnecessary to be decided in the light of the order.
17. In the teeth of the preceding analysis and the judgment of the Apex Court in the case of BHAJAN LAL, further proceedings if permitted to be continued qua the petitioner herein, would become an abuse of the process of the law and result in miscarriage of justice.
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18. For the aforesaid reasons, I pass the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) Impugned proceedings in Crime No.40 of 2020 pending before the Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Puttur stand quashed qua accused No.2/petitioner herein.
(iii) It is made clear that any observations made in the course of the order is only for the purpose of considering the case of accused No.2/petitioner herein and the same shall not influence or bind any proceeding or investigation against accused No.1 in Crime No.40 of 2020.
Consequently, I.A.No.2/2022 and I.A.No.3/2022 also stand disposed in terms of the observations made in the course of the order.
Sd/-
JUDGE Bkp CT:MJ