IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.405/2019 BETWEEN:
1. Dr. Geetha V., W/o R. Suresh Kumar Aged about 48 years Karunya Charitable and Medical Services Trust, Hossuru Originally Residing at No.10/71B, Anna Nagar, Hosur-635 109.
2. Smt. Ramani W/o Ramadas C.A. Aged about 51 years Karunya Charitable and Medical Services Trust, Anda egove Village Somwarpet, Originally Residing at Anda egove Village and Post, Kushalnagar Hobli Kodagu District-571 234.
…Petitioners (By Sri Ramesh Chandra, Advocate) AND:
State of Karnataka by Kushalanagar Police Station Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri M. Divakar Mddur, HCGP) …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 19.11.2018 passed by the Civil Judge and JMFC Kushalnagar against the petitioners by allowing the application filed by petitioner under Section 239 of Cr.P.C and consequently discharge the petitioner.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R This petition has been filed by the petitioners- accused No.16 and 6 challenging the order passed by the Civil Judge and JMFC, Kushalnagar, in C.C.No.1038/2011 dated 19.11.2018.
2. I have heard the learned counsel for the petitioners and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that one Smt.P.Padmavathy filed the complaint alleging that on 3.7.2009 ‘Karunya Charitable and Medical Services Trust’ was got registered and nearly about 10 trustees were in existence. The Trust was formed to give free medical checkup and distribution of cow, sheep, sewing machine, candles etc. and an amount of Rs.3,86,54,229/- was collected by the said trust from the members of the society. Apart from that the said trust has also collected huge money and nearly about 900 members were given the facilities and for remaining members of the society no such facilities have been given as assured and when they question the trustees there were no funds in the trust and the said trustees have mis-utilized the funds by cheating the members and as such they requested to take action against the accused persons.
4. The main contention of the learned counsel for the petitioners is that accused No.6 is working as a Doctor and she joined the said trust on 3.7.2009 and within two days she resigned on 5.7.2009. For having given the resignation she has produced Annexure-B2 and the said resignation has been placed in the trust committee and the same has been accepted by Annexure-B3 and the same has been communicated as per Annexure-B4. It is his further submission that account of the trust has been opened only on 24.7.2009, by that time she was not a trustee of the said trust. Under such circumstances the question of accused No.6 misappropriating any funds of the said trust does not arise at all. It is his further submission that accused No.6 is working as a Government Doctor. If she hold the trust, she again become a trustee, as such resignation has been given. It is his further submission that the name of the petitioner is not found either in the complaint or in any material produced by the prosecution. It is his further submission that nearly about 2000 witnesses have been examined and except in the statement of witness Nos.1919 and 1920, there is no material for having transferred the amount to Srinidhi Diagnostic Centre. It is his further submission that she is not concerned in any manner to Shrinidhi Diagnostic Centre. Even no amount has been recovered from the possession of accused No.16 and no prima facie materials have also been produced in this behalf to connect the accused to the alleged crime. It is his further submission that insofar as accused No.6 is concerned except the statement of Smt.Sarasu no other persons have stated with regard to the said act of the accused. No recoveries have been made and her name is also not found in Malupatti. It is his further submission that except for having introduced the investors, no allegations have been made as against the accused persons. It is his further submission that the Court below has not applied its mind to the charge sheet material and the said order is not a speaking order, it is a vague order and as such the same is liable to be set aside.
5. In order to substantiate his contention he relied upon the decision of the Patna High Court in the case of Param Pal Singh Gandhi Vs. State of Bihar reported in 2017 Crl.L.J. 4133. It is his further submission that there is no prima facie case made out as against petitioners- accused No.16 and 6 and as such he prays to allow the petition and to set aside the impugned order and discharge the accused.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that there is ample material as against the petitioners-accused No.16 and 6. He further submitted that the material collected during the course of investigation indicates that on 28.5.2013 accused No.6 has issued a receipt for having received Rs.4,000/- and the same has been recovered at the instance of accused No.6 and the name of accused No.6 has also been stated by the witnesses Nos.1919 and 1920. It is his further submission that accused No.16 is the owner of Srinidhi Diagnostic Centre and an amount of Rs.2,65,000/- has been transferred from the trust through ING Vysya Bank and said statement has also been endorsed by the bank. It is his further submission that insofar accused No.16 is concerned an agreement has been entered into with the owner of the Diagnostic Centre. That itself clearly goes to show that she is having link with the said diagnostic centre and the said amount has been transferred from the charitable trust. All these materials clearly go to show that there is ample material as against the accused. It is his further submission that at this stage the entire charge sheet material cannot be scrutinized, it is the matter of evidence. It is his further submission that for having utilized the funds of the trust for purchase of gold articles, the gold articles have been produced and same have been recovered. All these materials go to show that there is prima facie material as against the accused. On these grounds he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the order of the trial Court.
8. The order of the trial Court is very vague and it is not a speaking order. Merely because it is not a speaking order this Court cannot set aside the order and remit back to the Court below for reconsideration. When the learned counsel appearing for the parties have made available all the records and have argued in length, then under such circumstances, if the matter is remitted to the Court below, it is waste of time. In that light, I have perused all the material which has been produced by both the counsel.
9. It is the specific contention of the learned counsel for the petitioners that accused No.16 joined the trust on 3.7.2009 and resigned on 5.7.2009 and the account was opened only on 24.7.2009. As on that day she was not a trustee. Under such circumstances, there is no prima facie material as against accused No.16. It is his further submission that no recoveries have been made and her name is not appearing in the complaint. At this juncture it is the specific contention of the learned High Court Government Pleader that prima facie material indicates that an amount of Rs.2,60,000/- has been transferred in favour of Srinidhi Diagnostic Centre which is run by accused No.16 and some gold articles and the receipt for having received a sum of Rs.4,000/- have also been recovered from accused No.16. Recovery of receipt has been made from accused No.6 and the witnesses have deposed with regard to participation. At this stage, it cannot be held that there is no material as against accused Nos.16 and 6. All these material if they are looked into there is a prima facie case as against accused No.16 and 6. I have given my thoughtful consideration to the material placed on record. Insofar as the decision quoted by the learned counsel for the petitioners in the case of Param Pal Singh Gandhi Vs. State of Bihar quoted supra, the order deciding to frame a charge, must be a speaking order, it cannot pass vague order.
10. It is well settled proposition of law that whenever an application has been filed for discharge of an accused, then under such circumstances the trial Court has undoubted power to sift and weigh the evidence for the limited purpose of finding out as to whether there is a prima facie case made out as against the accused or not.
The test to determine a prima facie case would naturally depend upon the facts of each case and no straight jacket formula or universal law can be made in this behalf. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Union of India Vs. Profulla Kumar Samal and another reported in (1979) 3 SCC 4, wherein at paragraph 10 it has been observed as under:
“Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
11. Subsequently, the said decision has also been reiterated in the case of Sunil Vs. State of Maharashtra reported in 2019 SCC Online Bom 1972 and also in the case of Asim Shariff Vs. National Investigation Agency reported in (2019) 7 SCC 148.
12. Keeping in view the ratio laid down in the above said decision, if the entire facts and circumstances are taken into consideration, the material and documents on record it emerges there from that there exists some material as against the petitioners-accused.
13. It is well settled proposition of law that truthfulness of allegations could not be determined while framing charges and that can be ascertained only after conclusion of trial. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Sheoraj Singh Ahlawat and Others Vs. State of Uttar Pradesh and another reported in (2013) 11 SCC 476, wherein at paragraph 21 it has been observed as under:
21. Coming then to the case at hand, the allegations made against the appellants are specific not only against the husband but also against the parents-in-law of the complainant wife. Whether or not those allegations are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. This may at times put an innocent party, falsely accused of commission of an offence to avoidable harassment but so long as the legal requirement and the settled principles do not permit a discharge the court would find it difficult to do much, conceding that legal process at times is abused by unscrupulous litigants especially in matrimonial cases where the tendency has been to involve as many members of the family of the opposite party as possible. While such tendency needs to be curbed, the court will not be able to speculate whether the allegations made against the accused are true or false at the preliminary stage to be able to direct a discharge. Two of the appellants in this case happen to be the parents-in-law of the complainant who are senior citizens. Appellant 1 who happens to be the father-in- law of the complainant wife has been a Major General, by all means, a respectable position in the Army. But the nature of the allegations made against the couple and those against the husband, appear to be much too specific to be ignored at least at the stage of framing of charges. The courts below, therefore, did not commit any mistake in refusing a discharge.
14. Even it is well settled proposition of law that whether the material placed before the Court discloses the grave suspicion against the accused, then under such circumstances the Court is justified in framing the charge. If only a mere suspicion is there, then under such circumstances the Court is justified in discharging the accused. It is also well settled proposition of law that where the economic offence or commercial transaction, breach of trust, cheating and others i.e. economic offences are there and the conspiracy is also involved, then under such circumstances the Court must be very slow in interfering with the order of discharge. If there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the petitioners, that has to be considered only at the time of trial. This proposition of law has also been laid down by the Hon’ble Apex Court in the case of Central Bureau of Investigation Vs. K.Narayana Rao reported in (2012) 9 SCC 512, wherein at paragraphs 30 and 31 it has been observed as under:
30. Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.
31. However, it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein.
15. By taking into consideration the ratio laid down in the above decisions quoted supra, if the material which has been produced before this Court is looked into, there appears to be prima facie material for having linked with the said allegations. Under such circumstances I am of the considered opinion that the petitioners-accused No.16 and 6 have not made out a case to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed.
Petition is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
The above observation will not come in the way of final hearing.
During the course of argument the learned counsel for the petitioner-accused No.16 submitted that she is working as a doctor and it is very difficult for her to attend the Court on all dates of hearing. In that light, it has been made clear that insofar accused No.16 is concerned, as and when her presence is necessary she can attend the Court and in all other respect if any exemption application is filed, same may be considered liberally.
In view of disposal of the main petition, IA No.1/2019 does not survive for consideration and the same is accordingly disposed of.
*AP/-
Sd/- JUDGE