IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE G.NARENDAR CRIMINAL PETITION NO.8145/2019 BETWEEN 1. SMT. ACCHAMMA W/O. LATE P. RAMAIAH, AGED ABOUT 90 YEARS, R/A NO.299/1, 4TH MAIN ROAD, 1ST PHASE, MANJUNATHANAGAR, BANGALORE-560001.
2. R. SRINIVASA MURTHY S/O. LATE P. RAMAIAH AND SMT. ACCHAMMA, AGED ABOUT 56 YEARS, R/A NO.105, 4TH CROSS, LAKSHMINAGARA, BASAVESHWARANAGAR, BANGALORE-560079.
...PETITIONERS (BY SRI DILRAJ JUDE ROHIT SEQUEIRA, ADV.) AND 1. THE STATE REPRESENTED BY THE STATION HOUSE OFFICER, GNANABHARATHI POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001.
2. B. ABDUR RAHIM KHAN S/O. B. ABDUR LATEEF KHAN, AGED ABOUT 74 YEARS, R/A NO.79, 6TH CROSS, POTTERY TOWN LAYOUT, WILLIAMS TOWN EXTENSION, BANGALORE-560046.
RESPONDENTS (BY SRI SHOWRI H.R, HCGP FOR R1) THIS CRL.P IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS CASE IN CONNECTION WITH C.C.NO.11236/2017, FOR THE OFFENCE P/U/S 120B,406,418,420 R/W 34 OF IPC, ARISING OUT OF PCR NO.10668/2015 THE PENDING ON THE FILE OF THE 4TH A.C.M.M., AT BENGALURU, PERTAINING TO JNANABHARATHI P.S., THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioners and the learned High Court Government Pleader.
2. The petitioners are praying to quash the proceedings in C.C.No.11236/2017 for the offence punishable under Sections 120B, 406, 418, 420 read with Section 34 of IPC arising out of PCR No.10668/2015 pending on the file of the IV Additional Chief Metropolitan Magistrate, Bengaluru.
3. The case of the de-facto complainant is that he is a member of Karnataka State ‘D’ Group Employees Association assigned with membership No.1753 and had applied for the allotment of a site from the Association. The Association, which had formed house sites in various Survey numbers at Srigandhakaval allotted a site bearing No.1807 and handed over the possession of the said site on 20.05.2004 under possession Certificate No.1753. The said allotment of site was made in view of the lawful consideration paid by the complainant being the sum of Rs.86,470/-. It is further submitted that after the receipt of the consideration, accused Nos.1 and 2 executed a registered Sale Deed in favour of the complainant on 23.06.2004, which came to be registered as document No. BLN-1-13106-2004-2005 stored in CD No.BLND16 of Book-1 in the office of the Senior Sub-Registrar, Bengaluru North Taluk. That thereafter, the revenue entries have also been transferred in favour of the complainant and that the complainant is regular in paying the taxes and the accused No.1 has also issued a no objection to the complainant to deal with the property in any manner as he likes.
4. That the accused, acting in an illegal and malafide manner again re-allotted the said site in favour of accused No.3, who claims to be the member of Association and having been assigned membership No.1767. That after the order of allotment, accused Nos.1 and 2 proceeded to register a second Sale Deed in respect of site bearing No.1807 in favour of accused No.3 on 18.11.2010 and immediately thereafter, accused No.3 is said to have executed a registered Gift Deed dated 13.12.2010 in favour of her son i.e., accused No.4.
5. It is alleged that accused Nos.1 and 2 are the very same persons, who had issued the order of allotment and executed the Sale Deed in favour of the complainant and despite the same being within their knowledge have deliberately played a fraud by roping accused Nos.3 and 4. That the said facts came to the knowledge of the complainant only when accused Nos.3 and 4 went near the property and attempted to dispossess him forcibly.
6. From the facts narrated above, it is apparent that the complainant has demonstrated a prima facie case. The trial Court by order dated 10.08.2015 after applying its mind has directed the registration of the case in PCR No.10668/2015 and further issued a direction under Section 156(3) Cr.P.C. to the jurisdictional Police. The jurisdictional Police after investigation have submitted a Report and have filed a charge sheet on 05.03.2017. Thereafter, the case came to be registered as C.C.No.11236/2017.
7. Accused Nos.3 and 4 being aggrieved by the same have preferred an application under Section 239 of Cr.P.C praying that they be discharged from the case in C.C.No.11236/2017. The trial Court by order dated 05.08.2019 after appreciating the contentions has been pleased to observe in paragraph No.8 as under and was pleased to reject the application on the premise that the charges leveled against the petitioners-accused is not groundless and that the petitioners are liable to stand tried.
“8.The documents are also produced by accused No. 3 and 4 to show that order has been passed by District Consumer Disputes Redressal Forum dated 14.08.2009. Admittedly, as per the order of the District Consumer Disputes Redressal Forum the sale deed has been executed by accused No. 1 and 2 in favor of accused No.3. However, on perusal of the order it discloses that, the complainant is not a party to the said complaint. On the other hand the complainant has produced the copy of the sale deed executed in his favour bearing site No. 1807 dated 26.04.2004 which is a registered sale deed and hence whether accused No. 3 and 4 were having knowledge of the existence of the earlier sale deed is a matter for trial. It is during the subsistence of the earlier sale deed another sale deed is executed in favour of accused No. 3. Hence, the said order is not within the knowledge of the complainant and the accused No. 1 and 2 also granted possession certificate in favour of the complainant on 8.2.2010. Hence, the order before the Consumer Forum is obtained without the knowledge of the complainant and without challenging the sale deed of the complainant. Hence, at this stage it cannot be concluded that accused No.3 and 4 are totally innocent and not aware of the title of the site at the time of filing complaint against the accused No.1 and 2 before the Consumer Redressal Forum. If the accused No.3 and 4 had knowledge of the sale deed of complainant with respect to the same site then are also liable for cheating the complainant have obtained an order from the Court behind the back of the complainant and hence at this stage the allegations against accused No.3 and 4 are cannot be considered to be totally groundless. Hence, at this stage it is not a case where the charges levelled against the accused can be considered to be totally groundless. Hence, at this stage no grounds are made out for discharge of accused No. 3 & 4. Hence, I answer point No. 1 in the negative.”
8. Today learned counsel for the petitioners would place reliance on the ruling of the Hon’ble Apex Court rendered in the case of Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others reported in (2015) 6 SCC 287 and would refer to the head note ‘B’ to contend that the trial Court has erred in rejecting the application for discharge as the complaint under Section 200 of Cr.P.C is not accompanied by an affidavit of the complainant and he would contend that in the light of the law governing the issue regarding exercise of the powers vested in the Magistrate under Section 156(3) of Cr.P.C, he would contend that the direction issued on 10.08.2015 stands vitiated.
9. The Hon’ble Apex Court was dealing with a case where an application had been made by the party under Section 156(3) Cr.P.C. In the instant case, the complaint is under Section 200 of Cr.P.C and on a perusal of the complaint, it prima facie discloses the commission of a cognizable offence. That apart, the petitioners have omitted to raise the objections at the earliest point of time and have remained indolent. The investigation having commenced and resulted in ‘A’ Report, this Court is unable to appreciate the contention being canvassed by the petitioners.
10. From a reading of the above judgment rendered by the Hon’ble Apex Court cited supra, the purport and object of the direction issued by the Hon’ble Apex Court is apparently to prevent abuse of provisions of Section 156(3) Cr.P.C and the Hon’ble Apex Court was pleased to condemn the exercise of the powers under Section 156(3) Cr.P.C on a mere application and hence, deemed it necessary to stipulate a measure that would result in holding the complainant accountable for a false allegation made if any, resulting in the exercise of powers under Section 156(3) Cr.P.C by the concerned Magistrate.
11. The Hon’ble Apex Court while taking note of the malaise and the abuse of the process of law, has in paragraph Nos.19 and 20 been pleased to observe as under after taking note of the fact that recourse is taken to Section 156(3) of Cr.P.C., as a routine procedure and in the facts and circumstances of the case, the Hon’ble Apex Court was pleased to observe that the recourse to the provisions of Section 156(3) Cr.P.C., was an abuse of process.
“19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) CrPC, as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the SARFAESI Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.”
“20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:”
“156.Police officer's power to investigate cognizable case.—(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
12. The Hon’ble Apex Court further proceeded to observe in paragraph Nos.28, 30 and 31 as under:
“28. Issuing a direction stating “as per the application” to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) CrPC is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29. xxx 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC 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 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 the 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.
31. We have already indicated that there has to be prior applications under Sections 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 warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is 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 [(2014) 2 SCC 1] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
13. From a reading of the above, it is apparent that the Hon’ble Court intended to address the situation of indiscriminate exercise of the power and provide the safeguard against the abuse of the provisions of Section 156(3) Cr.P.C., and has directed, that application by the parties to the Magistrate, dealing with application, praying for investigation by the Police ought to be supported by an affidavit by the applicant, who seeks invocation of the jurisdiction of the Magistrate. The complaint preferred under Section 200 of Cr.P.C is accompanied by verification of the facts as hereinunder, which in the opinion of this Court is sufficient to hold the complainant is accountable for any false allegations.
“…..the complainant herein do hereby state and verify that what is stated above are true to the best of my knowledge, belief and information, which I believe them to be true.”
14. Be that as it may, in the light of the directions by the Hon’ble Apex Court, this Court is of the opinion that the said procedural lapse can be rectified by directing the respondent No.2 – Complainant to file an affidavit in terms as held necessary by the Hon’ble Apex Court in the case of Priyanka Srivastava (supra).
15. This Court deems it appropriate to issue a direction of the above nature in the light of the facts and peculiar circumstances involved in the instant case. The trial of the case has progressed to a large extent and if at this late stage, the plea of the petitioners is accepted and the complaint is quashed by granting liberty to the complainant to file a fresh complaint, it would result in travesty justice as speedy justice is one of the component of justice delivery system.
16. Accordingly, respondent No.2 is directed to file an affidavit in compliance of the law laid down by the Hon’ble Apex Court in the case of Priyanka Srivastava (supra). The trial Court shall proceed further in the trial after filing of the affidavit by respondent No.2 – Complainant.
17. This Court after having observed the facts involved it is of the prima facie opinion that accused No.3 appears to have been used by the other accused to take advantage of her advanced age and hide behind the said factor. The trial Court shall positively consider any request of accused No.3 for exemption from personal appearance.
Accordingly, petition is disposed of.
Sd/- JUDGE dn/-
CT-HR