IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.543/2016 BETWEEN:
Dr.RAMESH RANGANATHAN MBBS., DNB (Neuro) S/O. V.N.RANGANATHAN CONSULTANT NEUROSURGEON YASHOMATHI HOSPITALS MARATHAHALLI BENGALURU -560 033 … PETITIONER (BY SRI. SURESH S. LOKRE , ADVOCATE) AND:
1. BGS APPOLLO HOSPITAL ADICHUNCHANAGIRI ROAD KUVEMPUNAGAR MYSURU -570 023 2. M.N.G.BHARATEESH REDDY GENERAL MANAGER APPOLLO BGS HOSPITAL ADICHUNCHANAGIRI ROAD KUVEMPUNAGAR MYSURU -570 023 ... RESPONDENTS (BY SRI. VENKATESH R. BHAGAT, ADVOCATE) ---
THIS CRIMINAL PETITION FILED U/S.482 CR.P.C., PRAYING TO SET ASIDE THE ORDER PASSED BY IV ADDL. S.J., MYSURU DATED 15.12.2015 IN CRL.RP.NO.94/2015 AND RESTORE THE ORDER PASSED BY THE I ADDL. I CIVIL JUDGE AND JMFC, MYSURU TAKING COGNIZANCE IN PCR.NO.2536/2014 (C.C.NO.848/2015) DATED 03.03.2015 AND AWARD THE COSTS OF THIS PETITION.
This Criminal petition coming on for hearing this day, the Court made the following:
O R D E R Being aggrieved by the order passed by the IV Addl. Sessions Judge, Mysuru dated 15.12.2015 in Criminal Revision Petition No.94/2015 whereby learned Sessions Judge has allowed the revision petition and set aside the order dated 03.03.2015 in PCR.No.2536/2014 (CC.No.848/2015) passed by learned Magistrate taking cognizance of the offences under sections 405, 499, 415, 120A, 420 read with 500 of IPC, the petitioner is before this court.
Heard learned counsel for petitioner and learned counsel for respondents and perused the records.
2. Learned counsel for petitioner submits that the averments made in the private complaint and the sworn statement of petitioner clearly disclose the ingredients of above offences. Learned Magistrate had rightly taken cognizance of the said offences and considering the prima facie material produced by the complainant, had issued summons to the petitioner, but the Revisional Court, without considering any of the materials, has reversed the said order without assigning any reasons and hence, the impugned order passed by learned Sessions Judge is liable to be quashed.
3. Learned counsel appearing for respondents would submit that the averments made in the private complaint are vague and general in nature. Complainant did not specify any imputation leading to the defamation of the complainant. No assertions are made either in the complaint or in the sworn statement of the complainant constituting the offences under the provisions of Indian Penal Code. Learned Magistrate had mechanically passed the said order without considering the averments made in the complaint. Under the said circumstances, the Revisional Court was justified in setting aside the said order, hence, there is no reason to interfere with the impugned order.
4. Considered the rival submissions and perused the records.
5. A perusal of the order passed by learned Sessions Judge indicates that learned Sessions Judge has not adverted his mind to the averments made in the complaint. On the other hand, he has reversed the orders passed by the learned Magistrate with reasoning at paragraphs 20 and 21, which are extracted herebelow:-
“20. Perused the impugned order under revision. The learned trial Judge soon after filing of the complaint u/s 200 of Cr.P.C., has registered PCR and has recorded the statement of the complainant and then after perusing the documents produced by the complainant has taken cognizance of the offences and then posted the case for appearance of Accused persons. Then, again posted the case to hear on jurisdiction which is not proper. Prior to passing order dated 3.3.2015 only jurisdiction point should have been considered by learned Trial Court.
21. It is a settled law that while taking cognizance, the Magistrate has to apply his mind to the contents of the petition and the materials produced before him. In R.R.Chari v/s The State of U.P reported in AIR 1951 SC 207; 52 Cri.L.J. 1951 page-775 Hon’ble Supreme Court has observed: The expression “taking cognizance” has not been defined in the Criminal Procedure Code. It seems clear that before it can be said that any Magistrate has taken cognizance of any offence u/s 190(i)(a) Code of Criminal Procedure, he must not only apply his mind to the contents of the petition but he must also do so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter XV, proceeding U/s 200 and thereafter sending it for enquiry and report U/s 202. When the Magistrate applies his mind not only for the purpose of proceeding under the subsequent sections of that chapter but for taking action of some other hand eg., ordering investigation or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. Hence taking of cognizance by the Magistrate of an offence without application of mind to the allegations in the complaint in order to satisfy whether the allegations do constitute the offence alleged is improper. Taking cognizance of an offence on the basis of allegations in the complaint which do not constitute the offence alleged, is illegal. The issue of process and the consequential trial on the basis of such cognizance would be nothing short of an abuse of process of court and the complaint therefore would be liable to be quashed. Therefore, keeping in mind the said settled principles of law and also in view of the observations made above by the Hon’ble Supreme Court, I am of the opinion that the trial judge has erred in not applying her mind to the materials placed before her by the complainant and to come to a just decision of the case. Instead, she has mechanically without going to the merits of the complaint allegations and the materials placed before her has come to a wrong conclusion that the complainant has made out the allegations against the accused and has taken cognizance which is not proper in the eye of law. Before taking cognizance the trial judge should have gone in to the ingredients of the alleged offences and her jurisdiction to take cognizance etc,. Instead, she has mechanically passed the impugned order which needs to be interfered with.”
From the above it is clear that, without considering the averments made in the complaint, learned Sessions Judge has set aside the order passed by learned Magistrate.
6(i). I have gone through the private complaint filed by the petitioner. In paragraph 6 of the complaint, it is specifically stated, “the Complainant noticed gross-billing irregularities and certain misappropriation of funds during the months of January 2011 and July 2011. The Complainant found that there have been incompetent billing staff in the first accused Hospital which brought certain loss to the professional fees of the Complainant and the professional fees of the Complainant was wrongly billed and drastically reducing the same which prompted the Complainant to bring the above said matter to the notice of Dr.Umapathi, the Chief Operating Officer at Bangalore in the month of October 2011.” Further it is stated, “the Complainant then brought the billing irregularities matter to Mr.Bharateesh Reddy.” In the same paragraph, it is stated that, “the complainant had undergone loss in receipt of his professional fees. The Complainant had no idea that this was a deliberate act. However, at that point of time, in October 2011, since the Complainant informed this aspect to Mr.Bharateesh Reddy, the Second Accused herein, the said Second Accused verbally assured the Complainant that the Hospital would reimburse the professional fee after a thorough enquiry and assured that the said amount will be refunded at the earliest.”
(ii) During his sworn statement, complainant has produced relevant bills in support of accusations that by under- billing, petitioner has been denied of his legitimate fees. These allegations, in my view, prima facie constitute the ingredients of offences under sections 405 and 420 IPC.
(iii) Insofar as the alleged offence under section 499/500 and section 120A IPC are concerned, the only allegation in support of these accusations are found in paragraph 15 of the complaint wherein it is stated thus: “the Second Accused verbally abused the Complainant and spoke to the Complainant in a rude and unparliamentary language using words which were unparliamentary affecting the position and respect of the complainant.” Further it is stated that, “the Accused No.2 called the complainant to his Chamber and demanded the complainant to resign lest he would terminate the complainant.”
These allegations are not sufficient to make out the ingredients of offences under section 499 IPC. Petitioner has not spelt out the alleged imputations. There are no allegations that these utterances were intended to malign the name and reputation of the petitioner. As such, no offence leading to the prosecution of the respondent under section 499/500 IPC has been made out. Nonetheless the other allegations made in the complaint and the material produced before the Trial Court prima facie disclose the ingredients of the offences under sections 420 and 405 of IPC. To this extent, impugned order passed by the Revisional Court cannot be sustained.
7. Learned Magistrate has issued summons to the petitioner to face trial for the offences under sections 405, 499, 415, 120A, 420 read with 500 of IPC. On considering the material on record, I find that the averments made in the charge sheet and the material produced during the sworn statement makes out the offences only under sections 405 and 420 of IPC and not under section 499/500 and 120A of IPC. To this extent, impugned order passed by the court below calls for interference.
Accordingly, petition is allowed-in-part. The impugned order dated 15.12.2015 in Criminal Revision Petition No.94/2015 on the file of the IV Addl. Sessions Judge, Mysuru is set aside. The order dated 03.03.2015 in P.C.R.No.2536/2014 (C.C.No.848/2015) passed by learned Magistrate issuing process to the accused/respondents herein for the offences under sections 405, 499, 415, 120A, 420 read with 500 IPC is modified and process is directed to be issued to the accused/respondents herein only for the offences punishable under sections 405 and 420 IPC.
Sd/- JUDGE Bss