Karnataka High Court
S.S.V.Developers vs Sundar Premraj Jotwani on 3 June, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 100919/2014
BETWEEN:
1. S.S.V.DEVELOPERS
SUVIDA ANNEX
CONVENT SCHOOL OPPOSITE,
KESHVAPUR, HUBLI
DIST: DHARWAD
R/BY MANAGING PARTNER
SHRI VIJAY KUMAR
2. VIJAY KUMAR
S/O.KRISHNATHSA KABADI
AGE: 43 YEARS,
OCC: MANAGING DIRECTOR
S.S.V.DEVELOPERS
H NO. 105, OLD BADAMI NAGAR,
KESHVAPUR, HUBLI
DIST: DHARWAD
3. SMT. SMITHA
W/O.RAMESH CHAVAN
AGE: 45 YEARS,
OCC: DIRECTOR
S.S.V.DEVELOPERS,
UREKHA COLONY
H NO. 7, KUSUGAL ROAD,
KESHVAPUR, HUBLI
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DIST: DHARWAD
4. SHIVAPRAKASH
S/O. SHANKRAPPA ROTTI
AGE: 41 YEARS, OCC: DIRECTOR
R/O. R K MYANAR APARTMENT
PLOT NO. 67 & 68, 2ND STAGE,
FLAT NO.8, III FLOOR,
SHIRUR PARK,
VIDYA NAGAR, HUBLI
DIST: DHARWAD.
... PETITIONERS
(BY SRI F. V. PATIL, ADVOCATE)
AND :
1. SUNDAR PREMRAJ JOTWANI
AGE: 42 YEARS, OCC: BUSINESS
R/O. J & J INFRA,
UREKHA CORNER,
2ND FLOOR, KOPPIKAR ROAD,
HUBLI, DIST: DHARWAD.
2. THE STATE OF KARNATAKA
THROUGH HUBLI TOWN POLICE STATION
HUBLI, DIST: DHARWAD
R/BY HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
... RESPONDENTS
(BY SRI VIJAYAKUMAR MAJAGE, HIGH COURT
GOVERNMENT PLEADER FOR R2 ;
R1 - NOTICE DISPENSED WITH V/O. DATED
03.06.2014)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH/SET ASIDE THE COMPLAINT
DATED 21.05.2014 FILED U/S 200 OF CR.P.C. BY THE
RESPONDENT NO.1 IN P.C.NO.85/2014 VIDE ANNEXURE-
D AND ETC.
I. A. NO.1/2014 IS FILED FOR GRANT OF STAY.
THIS PETITION A/W. I.A. COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard learned counsel for the petitioners and learned High Court Government Pleader for respondent No.2 - State. Perused the records.
2. This petition is filed by petitioners praying to quash the order dated 21.05.2014 registered in P.C. No.85/2014 on the file of J.M.F.C. - I Court, Hubli and consequently to quash the F.I.R. dated 27.05.2014 in Crime No.156/2014 on the file of Hubli Town Police.
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3. The learned counsel for petitioners has brought to my notice that the learned Magistrate without looking into the contents of complaint averments and without satisfying itself that a case has been made out against the accused persons has blindly referred the matter to the police for investigation under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). Learned counsel for petitioners has took me through the order sheet of trial Court and also the contents of complaint.
4. I have carefully perused the orders passed by learned Magistrate and before referring to the order sheet of trial Court it is just and necessary to peruse the complaint averments in P.C. No.85/2014.
5. The complaint averments disclose that on 27.05.2014 the respondent No.1 herein has lodged a private complaint under Section 200 of Cr.P.C. for the offences punishable under Sections 407, 418 and 420 of the Indian 5 Penal Code, 1860 (hereinafter referred to as 'I.P.C.' for brevity). In the complaint it has been alleged that accused persons have cheated him. There is no necessity for this Court to go through the said allegations in detail, nevertheless, it is the specific case of complainant that the accused persons have committed the offences punishable under Sections 407, 418 and 420 of the I.P.C.
6. The learned Magistrate on receipt of complaint has passed the following order :
U/s. 200 Cr.P.C. r/w. 138, 142 N.I. Act. Complaint is filed by Sri RPC Adv. for complainant along with vakalath, process memo and true copy of complaint and documents.
ORDER
Complainant is present and
prosecute. The complaint at 21.05.2014. Office is directed to verify and put up.
Sd/- 21.05.2014 JMFC - I Court, Hubli.
7. On 21.05.2014 the learned Magistrate has passed the following order-
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Register P.C. perused the complaint.
Referred to concerned PP for investigation U/s. 156(3) of Cr.P.C. For report by 23/6.
8. The above order passed by learned Magistrate is challenged before this Court. It is pertinent to note that the office has not at all put up any note with regard to the complaint being filed for the offences punishable under Sections 407, 418 and 420 of the I.P.C. The order sheet discloses that on 21.05.2014 the learned Magistrate came to know that a private complaint was filed under Section 200 of Cr.P.C. read with Sections 138 and 142 of Negotiable Instruments Act, 1881. On the said date the above said order has been passed by learned Magistrate. The order sheet clearly discloses that the learned Magistrate has not at all examined the contents of complaint and has not even looked into the complaint averments before passing the order on 21.05.2014. This shows the indifferent attitude of learned Magistrate, which is much against to the recognised procedure to be followed under the Cr.P.C. It is just and 7 necessary for me to refresh the Magistrate as to what should be the procedure, which ought to have been followed by learned Magistrate while referring the matter to police for investigation under Section 156(3) of the Cr.P.C. The provisions under Section 156(3) of the Cr.P.C are reiterated below :
Section 156(3) - Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.
9. On meticulous reading of above said provision it discloses that the Magistrate empowered under Section 190 of Cr.P.C. may order such an investigation under Section 156 of Cr.P.C. Therefore, it is incumbent upon the Magistrate to understand whether the complaint can be referred to police after perusing Section 190 of Cr.P.C. and confirming himself that it falls within the category of section 190 of Cr.P.C. In fact Section 190 of Cr.P.C. refers to the 8 conditions which are requisite for taking cognizance under Cr.P.C. Section 190 of Cr.P.C. reads as follows -
190. Cognizance of offences by Magistrates -(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
10. As per the Section 190 of Cr.P.C. the learned Magistrate can take cognizance of the offences upon 9 receiving a complaint of facts which constitute such offence for which presently we are concerned about and in this particular case a private complaint is filed and the Magistrate was inclined to refer the matter to Police. The learned Magistrate is empowered to take cognizance upon receiving the complaint of facts, which constitute such an offence as alleged in the complaint. Therefore, the factual matrix as narrated in the complaint has to be examined meticulously by the learned Magistrate in order to come to a conclusion that the facts narrated in complaint attract any of the penal provisions for the time being in force so as to get the jurisdiction either to take cognizance by itself or to refer the matter to police under Section 156(3) of Cr.P.C. Therefore, it is not an automatic action of the Magistrate that immediately after filing of complaint irrespective of the allegations made in complaint the Magistrate can refer the matter to police, that cannot be an analogy if Sections 156(3) and 190 are read together. If the above said provisions are applied to this case, the order sheet discloses the total non- 10 application of mind by Magistrate in passing the orders by mechanically referring the matter to police under Section 156(3) of Cr.P.C. The order sheet discloses that a case has been registered for the offences punishable under Sections 138 and 142 of N.I. Act and there is no mention in the order sheet that the complaint was referred to police for investigation for the offences punishable under Sections 407, 418 and 420 of I.P.C. Therefore, the reference order passed by learned Magistrate is totally bad in law and it suffers from serious irregularity, which is not curable in nature. The police also cannot investigate the matter for the offences which are not being referred specifically, for investigation. Hence, the said order deserves to be quashed. Accordingly, the order passed by learned Magistrate in P.C. No.85/2014 dated 21.05.2014 in referring the matter to police under Section 156(3) of Cr.P.C. is hereby quashed. However, the matter stands remitted to learned Magistrate with a direction to follow the procedure contemplated under Sections 190 and 156(3) of Cr.P.C. and also to go through 11 the averments in complaint in order to ascertain whether the facts narrated therein constitute any offence against the accused persons in order to take cognizance or to refer the matter for investigation. With these observations, petition is allowed.
In view of disposal of main petition, I.A. No.1/2014 for grant of stay does not survive for consideration. Accordingly, I.A. No.1/2014 is disposed of.
Office is hereby directed to send a copy of this order to the learned Magistrate, who has passed the order, personally to the place where she is working, and also to send a copy to the concerned trial Court.
Sd/-
JUDGE hnm/