IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL REVISION PETITION No.677/2011 BETWEEN 1. K.U. Pothappa, S/o. K.U. Ambanna, Aged : 53 years, No.27/1, Maruthinagar, Gandhinagar, Siruguppa Road, Bellary.
2. Soorappa, S/o. Ambanna, Aged : 50 years, No.27/1, Maruthinagar, Gandhinagar, Siruguppa Road, Bellary.
3. Lalithamma D/o. Ambanna, Aged : 44 years, No.27/1, Maruthinagar, Gandhinagar, Siruguppa Road, Bellary.
4. A.V. Lokesh, S/o. A.R. Venkatarayappa, Aged : 45 years, No.504, 11th Cross, 13th Main, Gokula I Stage, Bangalore 5. Ambamma W/o. Ambanna, Aged : 70 years, No.27/1, Maruthinagar, Gandhinagar, Siruguppa Road, Bellary.
(BY SRI CHETAN DESAI, ADVOCATE) AND 1. The State of Karnataka By Yeshwanth Pura Police Represented by the State Public Prosecutor High Court of Karnataka, Bangalore 2. Smt. K. Rekha, D/o. Kenchanna, Aged : 30 years, R/o. Doddayya Building, 1st Main, 2nd Cross, B.K. Nagara, Yeshwanthpura, Bangalore.
... PETITIONERS ... RESPONDENTS (BY SRI VINAYAKA V.S., HCGP FOR R1;
SRI UMESH P.B., FOR SRI R.B. DESHPANDE, ADVOCATE FOR R2) This Criminal Revision Petition is filed U/S. 397 read with 401 of Cr.P.C., praying to set aside the order dtd.21.03.2011 passed by IX Addl. C.M.M., Bangalore in C.C. No.1212/1998, thereby rejecting the application filed by the petitioners-accused Nos.2 to 5 and 7 under Section 239 of Cr.P.C.
This petition coming on for Hearing, this day, the Court made the following:-
ORDER This petition is directed against the order dated 21.03.2011 passed by the IX ACMM, Bangalore in C.C. No.1212/1998 whereby the application filed by the petitioners/accused Nos.2 to 5 and 7, under Section 239 of Cr.P.C. has been dismissed.
2. During the pendency of this petition, petitioner No.2 - Soorappa having died on 29.01.2015 and petitioner No.5 Ambamma having died on 12.12.2013, the proceedings against them are dismissed as abated.
3. Heard the learned counsel for the petitioners on behalf of petitioner Nos.1, 3 and 4, namely; accused Nos. 2, 4 and 5 and the learned counsel for the respondents.
4. The case of the prosecution is that CW1- complainant had married accused No.1 on 10.05.1998 and it is alleged that at the time of marriage at the instigation of the petitioners, accused No.1 demanded and collected a dowry of Rs.75,000/- and gold weighing 150 grams and other articles. Further, it is alleged that, after marriage, petitioners herein demanded the complainant - PW1 to bring dowry and also forced her to write a letter stating that her husband, namely; accused No.1 was “a good person and that no one is responsible for her death”.
5. On service of summons, the petitioners herein sought for their discharge by making an application under Section 239 of Cr.P.C., on the ground that the allegations made against the petitioners prima facie do not disclose the ingredients of the offences under Sections 498(A), 420, 506 and 120B of IPC and Sections 3 and 4 of Dowry Prohibition Act. The learned Magistrate after hearing the respective parties, by the impugned order dismissed application filed by the petitioners.
6. The learned counsel for the petitioners points out that in the complaint lodged by CW1, at the earliest instance she did not make any allegation whatsoever against the petitioners. All the allegations were directed only against accused No.1. The allegations against the present petitioners are therefore clearly an after thought and it is only in her further statement in the additional charge-sheet the petitioners have been implicated. The allegations made in the charge-sheet are not supported by any reliable evidence and under the said circumstance, the learned Magistrate has committed an error in rejecting the application filed by the petitioners seeking their discharge.
7. The learned counsel for respondent No.2 however argued in support of the impugned order contending that the learned Magistrate having considered the prima facie material produced in proof of the accusations made against the petitioners in the light of the statement of the complainant coupled with the statements of her parents, there is no reason to interfere with the impugned order.
8. The learned HCGP appearing for respondent No.1 has also argued in line with the submission of the learned counsel for respondent No.2 and sought for dismissal of the above petition.
9. I have considered the rival contentions and have carefully scrutinized the material on record.
10. The petitioners are implicated in the alleged offences only in the additional charge-sheet filed by the prosecution. The records indicate that prior to the lodging of the instant complaint, CW1 had filed a private complaint against petitioners and her husband in PCR No.231/1998 before the Chief Addl. Magistrate, Shivamogga. The said complaint was referred for investigation under Section 156 (3) of Cr.P.C., and after investigation the jurisdictional police at Shivamogga filed a ‘B’ report, which has not been challenged by CW1. Instead she filed a fresh complaint against the petitioners and against her husband before the Yashwanthpura Police on 24.05.1998.
11. I have gone through the complaint. There are no allegations whatsoever in the said complaint insofar as the present petitioners are concerned, attracting the ingredients of any one of the above offences. All the allegations made therein are directed only against her husband accused No.1. In this complaint she unequivocally stated that on the night of her marriage her husband asked her father to sign the surety deed for the OOD facilities available by accused No.1. The dispute between the parties appears to have emanated on account of the denial of her father to stand as surety for the facility available by accused No.1. It is only thereafter as an after thought, CW1 has given her further statement before the police implicating the petitioners herein alleging that at their instance accused No.1 had demanded and received dowry of Rs.75,000/- and gold weighing 150 grams from her. This allegation was conspicuously absent in the PCR lodged by her in Shivamogga Court as well as in the complaint lodged by her at the earliest point of time which already indicate that the implication of the petitioners in the alleged act of demand of dowry and harassment is an after thought and the above allegations have been made only with a view of rope in the entire members of the family of her husband. That apart, the allegations made in the charge-sheet are not in specific with regard to date and time. No corroborative evidence is produced in support of the allegations made against the petitioners. In that view of the matter, the trial Court has committed an error in proceeding with the matter and framing charges against the petitioners for the above offences. On considering the nature of the allegations made against the petitioners and on perusal of the evidence on record, in my view, this material does not prima facie make out the ingredients of the offences alleged against the petitioners. Therefore, the impugned order in my opinion cannot be allowed to stand. As a result this petition is allowed. The impugned order dated 21.03.2011 passed by the learned Magistrate is set aside insofar the petitioners are concerned. Consequently, the application filed by the petitioners under Section 239 of Cr.P.C., stands allowed and petitioner No.1 (accused No.2), petitioner No.3 (accused No.4) and petitioner No.4 (accused No.5) are hereby discharged of the offences alleged against them under Sections 498(A), 420, 506 120(b) of IPC.
The LCR be returned to the trial Court forthwith, for proceeding against accused No.1 in accordance with law.
SBS* Sd/- JUDGE