IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2443/2014 BETWEEN 1. B K SIDDEGOWDA S/O. SRI GANGAPPA AGED ABOUT 60 YEARS PRESIDENT 2. SRI KRISHNAPPA S/O. SRI THIMMAIAH AGED ABOUT 48 YEARS VICE PRESIDENT 3. SRI K.P HANUMANTHARAYAPPA S/O. PUTTANARASAIAH AGED ABOUT 62 YEARS SECRETARY 4. SRI KRISHNAIAH S/O SRI MARIGANGAIAH AGED ABOUT 43 YEARS TREASURER 5. SRI RAMACHANDRAIAH S/O. SRI DODDARANGAIAH AGED ABOUT 52 YEARS CONVENER 6. SRI K.M GOVINDARAJU S/O SRI D. MUDDAIAH AGED ABOUT 45 YEARS INTERNAL AUDITOR 7. SRI K.H PUTTARAJU S/O. SRI HANUMANTHARAYAPPA AGED ABOUT 32 YEARS JOINT SECRETARY 8. SRI RAMESH S/O. CHANNIGARAMAIAH AGED ABOUT 34 YEARS DIRECTOR 9. SRI SURESH S/O. RAMACHANDRAIAH AGED ABOUT 32 YEARS DIRECTOR 10. SRI KANTHARAJU S/O. THIMMAIAH, MAJOR, DIRECTOR 11. SRI MANJUNATH S/O SRI THIMMAIAH AGED ABOUT 32 YEARS DIRECTOR 12. SMT. GANGAMMA W/O SRI THIMMAIAH AGED ABOUT 48 YEARS DIRECTOR 13. SRI INDRA KUMAR S/O SRI SHIVARAMAIAH AGED ABOUT 46 YEARS DIRECTOR 14. SRI RAGHAVENDRA S/O SRI THIMMAIAH AGED ABOUT 34 YEARS DIRECTOR, 15. SRI K.R. RANGAIAH S/O. SRI THIMMAIAH AGED ABOUT 44 YEARS DIRECTOR 16. SRI K.P LAKSHMINARAYANA S/O. SRI PUTTANARASAIAH AGED ABOUT 47 YEARS DIRECTOR 17. SRI LAKSHMA MURTHY S/O. SRI D. MUDDAIAH AGED ABOUT 43 YEARS DIRECTOR 18. SRI NARASIMHAMURTHY S/O. SRI PUTTANARASAIAH AGED ABOUT 44 YEARS DIRECTOR 19. SRI DODDARANGE GOWDA S/O. SRI RANGAIAH AGED ABOUT 32 YEARS DIRECTOR ALL THE PETITIONERS ARE R/AT SRI BYLANJANEYA SWAMY SEVA SAMITHI, KODUGUJJANAHALLI URDIGERE HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-560066 ... PETITIONERS (BY SRI C R GOPALASWAMY, ADV.) AND 1. STATE BY KYATASANDRA POLICE TUMKUR REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING BANGALORE – 560001 2. SMT. JAYAMMA W/O CHANNAGANGAIAH AGED ABOUT 56 YEARS R/AT SITKAL, URDIGERE HOBLI TUMKUR TALUK, TUMKUR DISTRICT-560066.
... RESPONDENTS (BY SRI I.S.PRAMOD CHANDRA, SPP-II FOR R-1, SRI VINAYAK.N.URANKAR, ADV. FOR R-2.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH ALL ENTIRE PROCEEDINGS IN C.C.NO.1754/2014 (ARISING OUT OF PCR NO.348/2013 INITIATED BY THE SECOND RESPONDENT - SMT. JAYAMMA) PENDING ON THE FILE OF PRL. C.J. (JR. DN.) AND J.M.F.C., TUMKUR.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard learned counsel for the petitioner and learned SPP-II appearing for respondent no.1. Counsel for respondent no.2 is absent.
2. Respondent no.2 filed a private complaint in PCR No.348/13 seeking prosecution of the petitioners herein for the offences punishable under Sections 138 of N.I Act and 420, R/w.403, 419 and 34 of IPC.
3. On receiving the complaint, the learned Magistrate took cognizance of the offence and directed registration of the case and posted the case for recording sworn statement on 27.4.2013. However, by a subsequent order dated 11.6.2013, learned Magistrate referred the matter to the CPI of Kyathanahalli Police Station under Section 156(3) of Cr.P.C. Accordingly, investigation was taken up and charge sheet is laid against the petitioners.
4. Learned counsel for the petitioners has assailed the procedure adopted by the learned Magistrate in referring the said complaint under Section 156(3) of Cr.P.C contending that the said order is opposed to the provisions of Sections 190 and 200 of Cr.P.C.
5. The order passed by the learned Magistrate reads as under:
“Office to refer the case to CPI of KSPS under Sec.156(3) of Cr.P.C by 29/7 Sd/- 11/06”
The impugned order is contrary to the guidelines laid down by the Hon’ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287, wherein after reviewing various authorities on the subject, in para. 27 thereof, the Apex Court has held thus:-
“27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.”
Further, in paras 30 and 31, it is held as under:-
“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 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
6. For these reasons, the impugned proceedings cannot be allowed to be continued. Accordingly, the petition is allowed. The proceedings in C.C.No.1754/2014 pending on the file of Prl.C.J (Jr.Dn.,) and J.M.F.C, Tumkur are hereby set aside. Matter is remitted back to the Prl.C.J (Jr.Dn.,) and J.M.F.C, Tumkur to reconsider the matter from the stage of receiving complaint and thereafter proceed in accordance with law.
All contentions urged in the petition are left open.
Sk/- CT-HR Sd/- JUDGE