IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5608/2014 BETWEEN:
Dr.S.Mahalingam, S/o Sri. V.Shanmugam, Aged about 59 years, R/at No.39, IAS Officers Colony,16th Main, 5th ‘B’ Cross, BTM II Stage, Bangalore – 560076. …Petitioner (By Sri. Abishek K, Adv. for Sri. Diwakara Adv.) AND:
1.State of Karnataka, By Talagattapura Police Station, Harrohalli Circle, Ramanagar District, Reptd. by State Public Prosecutor, Karnataka High Court, Bangalore – 560001.
2. R.Amulya, W/o late H.Sridhar, Aged about 42 years, R/at No.281, 26th Cross, 9th Main, BSK 2nd Stage, Bangalore – 560070. ….Respondents (By Sri.Vijayakumar Majage, Addl.SPP for R1, Sri. C.G.Gopalaswamy, Adv. for R2 – absent) This criminal petition is filed u/s.482 of Cr.P.C., praying to quash the FIR and complaint in Crime No.406/14 found at Annexure ’A’ and ‘B’ registered by the respondent No.1, Talaghattapura Police, pending on the file of the II Addl. C.J.M., Bangalore Rural District, Bangalore against the petitioner arraigned as accused No.1 for the offences punishable under Sections. 420, 468, 406, 323, 149 f IPC etc.
This petition coming on for admission this day, the Court made the following;
ORDER Petitioner is accused No.1 in Crime No.406/2014 registered for the offences punishable under Sections.420, 465,468, 406, 323 and 149 of IPC.
2. The petitioner has sought to quash the said FIR and the complaint on the ground that the allegations made in the complaint are false and the said allegations do not constitute the offences alleged in the FIR.
3. Counsel for respondent No.2 is absent and has not addressed any argument. Heard the learned counsel for the petitioner and the learned S.P.P-II for respondent No.1- State and perused the records.
4. It is noticed that complainant has made serious allegations against the petitioner and others alleging that the petitioner and other members of the Governing Council are involved in cheating, fraud, misrepresentation, manhandling, forgery, assault and other offences. It is alleged that the complainant obtained certified copies of certain documents from the Registry and found that the petitioner herein had filed certain documents on or about 5th February 2005 in his capacity as President of K.T.E.S along with a letter dated 10/12/2013. On going through the agreement to sell and other documents, they found the following irregularities;
(1) there is alleged to be an ‘extraordinary’ meeting of the governing council on November 06, 2013, wherein Mr.Mahalingam are shown to have been welcomed as ‘new members’ and to have been admitted as ‘new members of governing council, the alleged resolution in that regard reading “It is unanimously resolved to welcome all the new members to the society and admit them as new Members of Governing Council considering their rich educational qualifications and high reputation in the society as stated in Annexure-I to ensure the future development of the Karnataka Technical Education Society”
which is followed by another resolution reading – “It is unanimously resolved to authorize the founder chairman Prof. H.K.S. Shastry to furnish all documents to the new members and initiate the action for transfer of the management of the educational institutions and the property of the society to the new members of the management of the society.”
(2) annexure-I to the aforesaid resolutions is the alleged “list of new governing council members who were admitted to the society” showing the names of the accused, which means that they were first made members of the governing council and then admitted as members of KTES, which is like putting the cart before the horse, though we do not admit that the accused ever became members of KTES, and assuming, but not admitting, that the said accused became members of the governing council, their entry is illegal since, according rule 7(a) of the rules and regulations of KTES, the total number of members of the governing council is only eleven and the alleged addition of the accused would have increased the strength to eighteen vitiating the very constitution, and subsequent functioning, of the governing council, (3) the aforesaid resolutions and annexure-I accompanying the same are fabrications in that when we have met our father on November 06, 2013, as narrated) supra, the accused were not in the picture and the modalities of overcoming the financial problems had not been worked out, (4) there is alleged to be an extraordinary meeting of the governing council on November 09, 2013, in which the alleged new members of the governing council are said to be present and the following resolutions are alleged to have been passed:-
“(i) It is unanimously resolved to submit resignation letters by the old committee members of their own voluntary decision due to their personal family problems with a request to relieve them from all responsibilities and detach them from the primary membership of the society with immediate effect.
(ii) It is unanimously resolved to commence the process of election of new Chairman/President of the society from amongst the new General Council Members to conduct day to day affairs of the society as old Chairman Prf. H.K.S. Shastry has tendered his resignation considering his old age and personal problem.
(iii) It is unanimously resolved to send the list of new and old Governing Council Members with copy of the above resolutions to the Registrar of Societies for ratification.” , (5) annexed to the letterhead sheet of KTES with address at its present location containing the aforesaid alleged resolutions, there is another letterhead sheet of KTES showing its old address at Yelachenahalli and containing the names and sigantures of the real members and my father, and not of the alleged new members of the governing council, (6) the letter head sheet containing our- real members names and signatures and our father is none other than the second sheet of the minutes of the meeting of November 06, 2013, referred to above, which means that the accused have, fraudulently fudged the said minutes (which act is evident from the averments in clauses (1) to (3) of this sub-paragraph), and fabricated the alleged minutes November 09, 2013, which is undeniable since there was no meeting on the said date and had not asked us (real members) for resignations, and assuming, but not admitting that there was any such meeting, real members had neither notice thereof nor did they attend the alleged meeting, (7) assuming, but not admitting, that there was a meeting of the governing council on November 09, 2013, the said meeting is per se illegal as the constitution of the governing council with eighteen members and the proceedings of, and any resolution passed in, the alleged meeting are null and void ab initio, (8) there is alleged to be yet another extraordinary meeting of the governing council said to have been held on December 09, 2013, allegedly attended by the alleged new governing council members in which the following resolutions are alleged to have been passed:-
“(i) It is unanimously resolved to accept resignation letters submitted by all the old committee members as stated in Annexure-I and relieved them from all responsibilities and delinked from the primary membership of the society with immediate effect to ensure proper handover of management of the society and entrust all powers of the society to new Governing Council Members as in Annexure-II.
(ii) It is unanimously resolved to elect Dr.S.Mahalingam as the Chairman/President of the society from amongst new General Council Members to take over new management of the society with immediate effect as the old Chairman Prof. H.K.S. Shastry’s resignation letter was accepted and relieved him immediately from day to day affairs of the society.
(iii) It is unanimously resolved to send the list of new Governing Council Members with a copy of the above resolution to the Registrar of Societies for approval.”, (9) annexure-I to the aforesaid resolutions is the alleged “list of old governing council members who were resigned from the society” showing our names and my father, while annexure-II is the alleged “list of new governing council members who have taken over the management of the society”, but neither annexure-I bears our signatures and my father nor annexure-II the signatures of the accused, (10) We were still members of the governing council and of KTES as on December 09, 2013, did not receive any notice of the alleged meeting of that date, and assuming, but not admitting, that there was any such meeting, they were absent, (11) notwithstanding our presence or absence in the alleged meeting of December 09, 2013, of the governing council, the said meeting is per se illegal as the constitution of the governing council with eighteen members is in violation of rule 7(a) of the rules and regulations of KTES and, for the said reason as well as on account of non-invitation to us, the proceedings of, and the alleged resolutions passed in, the alleged meeting are null and void ab initio, (12) the alleged agreement to sell dated February 05, 2014, is illegal and is not in consonance with the character, structure and organization of, as well as the law governing, KTES; the members of KTES do not own it and KTES cannot be regarded as property – corporeal or incorporeal; it cannot be traded; Mr. Mahalingam and others have taken advantage of my father’s physical, psychological and financial crisis and brought about the alleged agreement to sell; in the circumstances he was in, he had no bargaining power and the accused could dominate his will, (13) assuming, but not admitting, that the alleged governing council has been functioning from December 09, 2013, in view of the alleged resolutions of even date, with my father having allegedly ceased to be the chairman of KTES, and the alleged new governing council members allegedly being in place with Mr. Mahalingam as the alleged chairman of KTES, with effect from December 09, 2013, the alleged agreement to sell dated February 05, 2014, said to have been executed by KTES represented by my father as its chairman is non est, still born and void ab initio. ”
5. It is now well settled that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
6. In MADHAVRAO JIWAJIRAO SCINDIA & Others vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others reported in 1988 Cri.L.J. 853, it is held that:
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.”
Therefore, this is not a fit case to exercise jurisdiction under Section 482 of Cr.P.C.
7. Petition is dismissed.
Msu Sd/- JUDGE